Posts Tagged With: Supreme Court

The New “I Have A Dream” Speech, Why I Believe In America.

I thought that I would never hear a sweeter refrain than I Have A Dream by Dr Martin Luther King. Then I read “I Believe In America” by Dr Ben Carson.

No one else has articulated better the essence of American Culture and Christian Values than Dr Ben Carson. He makes the case for American Culture and Christian Values better than anyone I have heard to date. His Declaration of Beliefs is a modern classic.

 

Listen to the words.

 

Why I Believe In America.

In a very telling moment, Hillary Clinton maligned me and millions of other Americans as racist, sexist, homophobic, xenophobic and Islamophobic “deplorables.”

I’m so tired of this line of attack that normally taunts conservatives.

Well let me be very specific in my response.

Why I Believe In America.

I believe in expanding opportunity, not welfare; that’s not racist.

I believe every life is worth protecting, particularly the unborn; that doesn’t make me sexist.

I believe marriage is between one man and one woman; that’s not homophobic.

I believe in borders, the rule of law and our sovereign right to decide who to let into our country; that’s not xenophobic.

I believe radical Islam is a mortal threat to America and Western civilization; that is common sense, not Islamophobia.

My nationwide ‘Fight for the Court’ project is about explaining and protecting our Constitutional values. As you can see, they’re under constant assault, and if we allow the Left to institutionalize their vision of a European-style, government-dominated, secular society through our courts, we are going to lose our country for a generation.

If you’re tired of being vilified for believing in the Constitutional, Judeo-Christian values that made America great, please help me send a message by signing up to join me now.

We must use moments like this as opportunities because this is not just name-calling. The Left is using every tool at their disposal to whitewash our history and undercut our institutions.

The difference is that I believe in our nation as it was founded. I believe in “We the People,” but it requires us to constantly reach out, inform, and mobilize conservatives.

There are a lot of challenges before us and a lot of problems to solve. I’ve decided to concentrate on a few. ‘Fight for the Court’ is about protecting our Constitutional values.

Elections every few years are our opportunity to correct course if necessary, but the Supreme Court can be lost for a generation or more.

I ask you to join me by signing up and helping us to continue this fight.

Of the three branches of the federal government, the judiciary branch was supposed to be the weakest.

However, after decades of judicial overreach, the Court has accrued so much power that the opinions of nine unelected judges can dramatically affect the lives of every American.

This means that 2016 is not just about who will sit in the Oval Office. It’s about what kind of justices will be nominated to the Court — and the next President may have to fill two to three seats.

Whether it’s the protection of religious liberty or the 2nd Amendment, the legality of executive amnesty, or the future of school choice, we are facing two very different futures and we must ensure that every American understands the stakes.

Help us keep this issue front and center. Help us fight for the Court.Thank you for your commitment.

 

 

 

 

 

 

 

 

 

 

 

 

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Categories: American History | Tags: , , , , , , | Leave a comment

Will The Supreme Court Mock God?

In two and a half hours of oral arguments before the Supreme Court on April 28 in the Case of Obergefell v. Hodges concerning whether the U. S. Constitution gives homosexual couples the right to marry, Justice Kennedy appeared confused and undecided. While he seemed wary of moving the country too far, too fast; he was clearly vexed about what to do with this thorny issue. He is the author of three landmark decisions that decriminalized homosexual conduct and expanded the rights of homosexuals in American.

Would the Supreme Court dare to mock God? Do they have the temerity spit in the eye of The Almighty God and try to subvert God’s most loving and mysterious gift to mankind? Would these nine mindless social engineers try to change the definition of a universally sacred institution, such as marriage?

It would be an exercise in futility. You can legalize a social contract between two people of the same sex, but it will never be marriage, any more than calling a dog a cat. If you call a dog a cat, it is still a dog. 

Inherent in the definition of marriage is the ability to procreate. God is the source of life and he allows humans to take part in the process that ushers in new life. Even Angels cannot procreate, but humans can; and we do it when two people of the opposite sex marry and come together. 

Nothing nine people in black robes can say or do will ever change that. All they can do is make themselves irrelevant to the lives of moral American citizens.

The Court has no soldiers, tanks, or police to enforce their decisions. It relies on moral authority. If the Court surrenders all pretenses of morality and moral authority, then all right thinking Americans will have no choice but to ignore all the filth that issues from that court. If they attempt to change the definition of marriage to please that 1% of the population that is homosexual, it will be the supreme insult to the 99% of the American population that is not homosexual. It will forfeit every ounce of respect that the Supreme Court has worked to earn since Marbury v Madison.

 Four days before the hearing on April 24 , in Oregon, an Administrative Law Judge (ALJ) proposed a $135,000 fine against Aaron and Melissa Klein, proprietors of the Sweet Cakes bakery in Gresham, for the “emotional distress” suffered by a female homosexual couple for whom the Kleins, citing their Christian belief that marriage is between a man and a woman, had declined to bake a wedding cake in 2013.

The Kleins claimed that being forced to participate in a homosexual wedding would violate their Religious Liberty Rights. They were forced o close their business.

The Kleins have become one more family business in a small number of bakers, florists and photographers around the country who insist that their Christian beliefs in man-woman marriage preclude their providing services to homosexual weddings.

In Washington state, 70-year-old Barronelle Stutzman, owner of Arlene’s Flowers in Richland, has asked the state Supreme Court to overturn a $1,000 fine against her last month for refusing to arrange flowers for the homosexual wedding of a longtime customer; Ms. Stutzman had recommended another nearby florist instead.

The lower court that levied the fine also issued a permanent injunction ordering Ms. Stutzman, a Southern Baptist who has cited her “relationship with Jesus” as the reason for her refusal, to serve same-sex weddings in the future. She also faces the potential costs of awards for damages and attorney’s fees in a lawsuit brought by the American Civil Liberties Union (ACLU) on behalf of the customer and his homosexual  partner.

In 2014, the U.S. Supreme Court declined to review a New Mexico Supreme Court ruling that a Christian-owned photography studio could not refuse to take photos of a lesbian commitment ceremony. Colorado baker Jack Phillips announced that he would no longer make wedding cakes after the Colorado Civil Rights Commission ruled that he had discriminated against a homosexual couple in 2012 for declining to produce a cake for their wedding reception.

The irony is that only a few years ago, when the legalization of homosexual marriage didn’t appear so inevitable, homosexual marriage advocates eagerly assured a skeptical public that scenarios like those above would never happen. Typical was since-retired California Supreme Court Chief Justice Ronald M. George, who wrote in the 2008 decision legalizing homosexual marriage in California: “Affording same-sex couples the opportunity to obtain the designation of marriage will not impinge upon the religious freedom of any religious organization, official, or any other person.”

Wrong! So wrong! How wrong could he have been?

The victors have dropped their conciliatory stance. Bubonic plague-level hysteria surged through the media, academia and mega-corporate America in March after Indiana passed a law—modeled on the federal Religious Freedom Restoration Act of 1993—that would enable religious believers to opt out of universally applicable laws under some circumstances.

Amid threats of business boycotts, the Indiana legislature amended the law to ensure anti-discrimination protections for homosexuals—but not before a pizzeria in Walkerton shut down for a week amid death and arson threats after its Catholic owners told a reporter that, while they would gladly serve homosexuals in their restaurant, they wouldn’t cater a homosexual wedding.

Should the Supreme Court rule in Obergefell v. Hodges that homosexual marriage is a constitutional right, expect more of the same.

During oral arguments on Tuesday, Supreme Court Justice Samuel Alito asked Obama administration Solicitor General Donald Verrilli whether a religiously affiliated college that opposed same-sex marriage could lose its tax-exempt status after such a ruling. “It is going to be an issue,” Mr. Verrilli replied.

That is putting it mildly; the phrase “persecution of Christians” might be more apt. It would be nice if states passed religious-freedom laws that both protected homosexuals from discrimination in day-to-day transactions and accommodated people whose beliefs recognize traditional man-woman marriage—as Utah did last month. But in today’s mood of vengeful triumphalism among the progressive left leaning liberal elites who rule public opinion, don’t count on many compromises. 

(See generally Modern Sin: Holding On To Your Belief, by Charlotte Allen, Wall Street Journal, p. A-11, May 1, 2015)

Categories: Religious Liberty | Tags: , , , , | Leave a comment

Federal Appeals Courts Split on Health Care Subsidy

 

Good. This means that we are a nation of laws and the Rule of Law still applies. The Rule of the Political Party does not control; not yet, anyway. But wait, this is not over. The DOJ plans to appeal this decision to the full Washington DC Circuit Court. This was a 2-1 majority decision by 3 judges out of the full 11 on the DC Circuit. 4 of the 11were appointed by Obama and 7 of the 11 were appointed by Democrats. If the Rule of Law still governs in America, then an “en banc” decision by the full 11 judges will result in the same decision. But if political party trumps the Law then an appeal would result in the politically absurd ruling advanced by the Democrats who pushed thru the flawed and defective ObamaCare Law.

Two federal appeals court rulings put the issue of ObamaCare subsidies in limbo Tuesday, with one court invalidating some of them and the other upholding all of them.

The first decision came Tuesday morning from a three-judge panel of the U.S. Court of Appeals for the District of Columbia. The panel, in a major blow to the law, ruled 2-1 that the IRS went too far in extending subsidies to those who buy insurance through the federally run exchange, known as HealthCare.gov.

A separate federal appeals court in Virginia, next door to Washington, DC — the Fourth Circuit Court of Appeals — hours later issued its own ruling on a similar case that upheld the subsidies in their entirety.

The conflicting rulings would typically fast-track the matter to the Supreme Court. However, it is likely that the administration will ask the D.C. appeals court to first convene all 11 judges to re-hear that case.

White House Press Secretary Josh Earnest stressed Tuesday that different courts have reached different conclusions on the subsidy issue, and said the latest ruling against the subsidies “does not have any practical impact” at this point on the ability of people to get tax credits. The White House later said the D.C. decision was “undermined” by the Fourth Circuit decision.

 

Still, the D.C. court ruling nevertheless strikes at the foundation of the law by challenging subsidies that millions of people obtained through the federally run exchange known as HealthCare.gov.

The suit maintained that the language in ObamaCare actually restricts subsidies to state-run exchanges — of which there are only 14 — and does not authorize them to be given in the 36 states that use the federally run system.

The court agreed.

“We reach this conclusion, frankly, with reluctance. At least until states that wish to can set up Exchanges, our ruling will likely have significant consequences both for the millions  of individuals receiving tax credits through federal Exchanges and for health insurance markets more broadly,” the ruling stated.

The case, Halbig v. Burwell, is one of the first major legal challenges that cuts to the heart of the Affordable Care Act by going after the legality of massive federal subsidies and those who benefit from them.

The decision said the law “unambiguously restricts” the subsidies to insurance bought on state-run exchanges.

The dissenting opinion, though, claimed political motivations were at play. “This case is about Appellants’ not-so-veiled attempt to gut the Patient Protection and Affordable Care Act (‘ACA’),” the dissent stated.

The ruling, though likely to be appealed, could threaten the entire foundation of the newly devised health care system. Nearly 90 percent of the federal exchange’s insurance enrollees were eligible for subsidies because of low or moderate incomes, and the outcome of the case could potentially leave millions without affordable health insurance.

“Today’s decision rightly holds the Obama administration accountable to the law,” Sen. Orrin Hatch, R-Utah, said in a written statement adding, “… As it has on so many occasions, the Obama administration simply ignored the law and implemented its own policy instead.”

The next step for the Obama administration would be that they request a so-called en banc ruling, which means there would be a vote taken by all of the judges on the court. An appeals court can only overrule a decision made by a panel if the court is sitting en banc.

Earnest said the Department of Justice will likely appeal to the full D.C. Circuit Court and defended the administration’s position that Congress intended “all eligible Americans” to have access to the subsidies regardless of which entity set up the exchange.

“We are confident in the legal position that we have,” Earnest said.

Ron Pollack, founding executive director of Families USA, said in a written statement that the ruling “represents the high-water mark for Affordable Care Act opponents, but the water will recede very quickly.”

He added, “It will inevitably be placed on hold pending further proceedings; will probably be reheard by all of the 11-member active D.C. Circuit Court of Appeals members, who predictably will reverse it; and runs contrary to” the ruling from the Fourth Circuit Court of Appeals.

The appeals process could eventually lead to the U.S. Supreme Court deciding on the legality of the subsidies, but Pollack, whose group supports the law, believes that won’t happen.

Of the 11 judges that could rehear the case, seven are Democrats and four are Republicans.

Halbig v. Burwell, which previously had been called Halbig v. Sebelius, is one of four federal lawsuits that have been filed aimed at targeting the idea of tax credits and other subsidies afforded under ObamaCare.

A total of $1 trillion in subsidies is projected to be doled out over the next decade.

A U.S. District Court previously sided with the Obama administration on Jan. 15.

Categories: Constitutional Law | Tags: , , , , , , , , | Leave a comment

Video Hearings At Social Security Are A Denial Of Due Process Rights

Social Security Disability Video Hearings Increased In 2013

Social Security Disability Video Hearings Increase In 2013, Allsup Reports

More people than ever before attended a video hearing in 2013 while seeking Social Security disability benefits.

The number of video hearings increased to 179,308 in fiscal year 2013, more than double the 86,320 video hearings in FY 2009, according to data released by the Social Security Administration (SSA) in its Annual Performance Plan for Fiscal Year 2015. This was an increase of nearly 17 percent from 153,592 video hearings the previous year (FY 2012).

Video hearings are one of the methods SSA uses to reduce the backlog of SSDI claims.

The use of video-conferencing technology to exclude the Claimant from being physically present in the same Hearing Room as the ALJ and other witnesses violates the Claimant’s due process rights. 

A Claimant who can only observe witnesses on a television screen will not be able to observe

the demeanor  of the witnesses and properly ascertain the accuracy and reliability of their proffered evidence.

( http://www.amazon.com/socialNsecurity-Confessions-Social-Security-Judge/dp/1449569757)

The primary  reason, among others, for the use of video hearings is to reduce travel costs and conserve the time of its ALJs and hearing support staff without diminishing the Claimant’s ability to effectively participate in the hearing.”

Social Security (SSA) recently changed its rules regarding videoteleconferencing (VTC), and is now sending notices regarding VTC at an early stage of the hearing level. The new notice requires a decision within 30 days whether or not to object to a video hearing. Previously, the objection to VTC was not made until the time a hearing was actually scheduled.
By moving forward the date by which an objection can be made, the issue of whether to accept a VTC is much easier. You may not know the identity of your judge or when your hearing will be scheduled. This should, make it much easier to “Just say No” to a video hearing.
Social Security loves to use VTC. It is an effective way to reduce a Backlog. There are national hearing centers where administrative law judges (ALJ) hear cases all day by video from remote locations.
SSA expected this change in policy would lead to fewer objections to video hearings. It might have the opposite effect. Logically, if claimants have lawyers who give good advice, this might lead to more refusals to VTC hearings.
Claimants’ representatives are acquainted with the ALJs in their area. They know what the ALJs are looking for in order to decide a case. They can read their body language at an in-person hearing.
A smart attorney would not risk the possibility of his cases being heard by a distant unknown ALJ.
There is another issue that attorneys must consider. ALJs from remote parts of the USA have different and sometimes strange ways of looking at and sizing-up claimants. Also, claimants in certain regions of the USA have different and unique behavioral habits. These peculiarities will effect how an ALJ looks at and judges the claimant and the evidence. Many times it is like a roll of the dice to accept a VTC Hearing. It is safer to “Just Say NO!”.
Every case will be different. It would not be smart to adopt a blanket policy. Every case should be evaluated on its own merit, but the first impulse should always be to refuse to accept a VTC Hearing. You have little to gain and much to loose.

A Claimant could argue that the SSA ALJ must give the Claimant an “opportunity to appear,” as provided in the U S Constitution which requires the defendant and the judge to be physically present in the same courtroom.

 Most reasonable people would agree with this contention, referring to the meaning of appear and to the traditional understanding of a Claimant’s appearance before a court empowered to deprive him of his property, that is to say, his Disability Benefits.

It is noted that both the Webster’s Dictionary and the Black’s Law Dictionary define appear and

appearance so as to suggest that an appearance can only occur if the person comes into the physical presence of the judge. To appear means to be physically present.

The form and substantive quality of a hearing is altered when either the defendant or

the judge is absent from the hearing room, even if he or she is participating by video-conference.

SSDI is a federal insurance program that provides monthly income to people under full retirement age (65-67) with a severe disability lasting at least 12 months or a terminal condition.To apply for SSDI benefits, someone must be unable to work.

SSDI is funded by FICA payroll taxes paid by workers and their employers.

Individuals reach the hearing level after their initial application has been denied two times by the State Disability Determination Service (DDS).

Most hearings are still held in person before administrative law judges (ALJs). But Social Security is increasing its ability to perform hearings through video conferencing, including using video at National Hearing Centers. The SSA has five of these centers in Albuquerque, N.M., Baltimore, Chicago, Falls Church, Va., and St. Louis. (Statistics provided by ALLSUP)

A claimant will give up important due process rights if he or she opts for a video hearing.

During a video hearing, the ALJ, claimant and representative interact with each other using videoconferencing equipment, very similar to a large television. The judge usually remains at his location and connects by video with the claimant at his or her location.

Video conferencing can be more convenient for the claimant, if he or she lives in a remote area. And it saves travel time for the judge.

Consider the following information when preparing for an SSDI hearing.

  •     How should I dress? A hearing is not a time to dress casually. A business suit isnt required, but jeans, shorts and flip flops arent a good idea, even for a video hearing.
  •     What happens when I get there? The process typically is the same for hearings, video or in-person. The judge leads the hearing, and he or she asks questions of the claimant and the representative.
  •     Whats different with a video hearing? It can be important for someone to provide technical support, to make sure the video and sound quality are good, and to ensure the sound recording is working properly. The sound recording is kept for the records.
  •     Who else is there? There also can be vocational experts, medical experts and other witnesses at the hearing to provide testimony.
  •     How does the hearing end? The entire hearing may last about an hour as the ALJ evaluates the information being provided by the person who is seeking SSDI benefits and other testimony. When the judge has all the information he or she needs, the hearing is ended. Its rare that the judge announces the decision (to award or approve) at the conclusion of the hearing.

Some people become very frustrated at video hearings.

  • MADISON, Wisconsin — A Wisconsin Rapids woman will spend three years on probation for threatening to kill a federal administrative law judge (ALJ).

    Fifty-one-year-old Norma Prince was sentenced Thursday March 6, 2014. Prince pleaded guilty in December.

    Prosecutors say the incident happened Jan. 31, 2013, when Prince appeared at a Social Security disability benefits hearing in Wausau.

    Administrative Law Judge Thomas Sanzi was presiding over the hearing by video teleconference from Madison. Prosecutors say Prince became upset and threatened to shoot Judge Sanzi and cut off his head. The hearing was halted and Prince was escorted from the courtroom.

    Prince’s husband told a federal agent that his wife had bought two .22-caliber rifles about a month before the disability hearing.

    At sentencing, U.S. District Judge Lynn Adelman said Prince’s mental health issues can be controlled through medication and supervision.

      A video-conference hearing is one  at which all parties were physically present except for the judge and the court reporter, who participate by video-conference from a remote location.

    SSDI claimants should challenge the judge’s decision to conduct a hearing by

    video-conference.

    I present here the question of first impression for SSA SSDI appeals: “whether the

    use of video-conferencing to conduct a hearing violates  the Fifth Amendment’s Due Process Clause.

    Although the SSA and no SSA ALJ has previously confronted this exact

    issue, the question of the constitutional and statutory validity of the use

    of videoconferencing technology by the Federal Administrative Agencies is far from

    novel. As technology has advanced rapidly, the SSA has been faced with a surge of new, unforeseen issues that it has had to resolve without legislative direction.

    The invention of video-conferencing appeared to be a perfect solution to the SSA; so, it  has encouraged the use of video-conferencing systems in the Hearing Rooms.

    Courts and government agencies have implemented the use of

    video-conferencing technology in post-conviction proceedings, including

    probation, parole, and supervised release revocation hearings.

    The courts of appeals are beginning to strike down the practice, but only on

    statutory grounds. This trend appears to rest on the general principle

    of judicial restraint that requires courts to avoid constitutional questions

    if statutory analysis is sufficient.

    However, in the absence of legislation or a decision from the United

    States Supreme Court, there remains the potential that SSA ALJ Hearings and other federal courts,  could find that video-conferencing violate a Claimant’s Due Process rights.

    Therefore, the due process rights undermined by the use of video-conferencing technology

    deserve the judiciary’s attention, particularly the right to be present at your Hearing, and to effective assistance of counsel and the right to confront adverse witnesses, such as, SSA’s Consultative Medical Examiners (ME) and Vocational Experts (VE).

     Videoconferencing at Rule 43 Criminal Proceedings

    In the 1990s and early 2000s, circuit courts first considered whether

    the use of videoconferencing at a criminal proceeding governed by Rule 43

    satisfies the statutory requirement that a defendant be “present.”

    Since that time, the Fourth, Fifth, Ninth, and Tenth Circuits have held

    that the use of videoconferencing at Rule 43 proceedings violates a

    defendant’s statutory rights. For example, the Tenth Circuit confronted this issue in 2002 in

    United States v. Torres-Palma. In Torres-Palma, the defendant appeared by videoconference at his

    sentencing, which took place in a different state than where the judge presided. In determining that Rule 43 required a defendant to be physically present at sentencing, the court concluded that the content and the plain reading of the text of Rule 43, along with the Webster’s Dictionary and Black’s Law Dictionary definitions of presence and present, mandated that physical presence

    was required.

     Fifth Circuit noted that the rights protected by Rule 43 include not only due process rights and the common law right to be present, but also the right of a defendant to meet face-to-face with witnesses appearing before the trier of fact, as governed by the Confrontation Clause.

    After the Tenth Circuit’s decision and the decisions of its sister circuits, it was clear that, even though the use of videoconferencing could increase productivity and save money, the technology was not appropriate for Rule 43 proceedings because it violated both common law and statutory rights to be present.

    The reason for the use of video hearings is to reduce travel costs and conserve the time of its ALJs and hearing support staff without diminishing the Claimant’s ability to effectively participate in the

    hearing.”

    Violates his statutory  and constitutional rights when it denied his request for an in-person

    hearing. Specifically,  the use of videoconferencing violated his due process rights and 18 U.S.C. § 4208(e), which requires that a prisoner “be allowed to appear and testify on his own behalf.

    A Claimant could argue that the SSA ALJ must give the Claimant an “opportunity to appear,” as provided in the U S Constitution which requires the defendant and the judge to be physically present in the same courtroom.

     Most reasonable people would agree with this contention, referring to the meaning of appear and to the traditional understanding of a Claimant’s appearance before a court

    empowered to deprive him of his property, that is to say, his Disability Benefits.

    It is noted that both the Webster’s Dictionary and the Black’s Law Dictionary define appear and

    appearance so as to suggest that an appearance can only occur if the person comes into the physical presence of the judge. To appear means to be physically present.

    The form and substantive quality of a hearing is altered when either the defendant or

    the judge is absent from the hearing room, even if he or she is participating by video-conference.

    The Seventh Circuit of Appeals referred to the Supreme Court’s decision in

    Escoe v. Zerbst, in which the Supreme Court determined that a lower

    court’s decision to revoke a defendant’s probation without a hearing

    violated the requirement that he be “brought before the court.” Although Escoe

    predated video-conferencing technology, and the Internet for that matter, the case provided the traditional legal understanding of a person’s appearance. In Escoe, the Court held that

    “‘the end and aim of an appearance before the court’ under the statute was to ‘enable an accused [parolee] to explain away the accusation,’ and this required ‘bringing the [parolee]

    into the presence of his judge.’” Additionally, the Seventh Circuit referenced the statutory language of other Federal Rules of Criminal Procedure that explicitly allow for the use of videoconferencing.

    The court reasoned that, since video-conferencing is permitted only with stated exceptions in the rules, the use of the technology “is the exception to the rule, not the default rule itself,” and that Rule 32.1’s “opportunity to appear,” therefore, excludes appearance by video-conference.

    During its interpretation of the opportunity to appear, the court also examined the statutory rights owed to a defendant at a revocation hearing. Rule 32.1 provides, in pertinent part, that:

    The person is entitled to: . . . (C) an opportunity to appear, present

    evidence, and question any adverse witness . . . ; [and] (D) notice of the

    person’s right to retain counsel or to request that counsel be appointed if

    the person cannot obtain counsel . . . .

    After determining that the opportunity to appear requires a parolee to come into the physical presence of the judge, the court furthered its statutory analysis by noting that this right is not isolated, but instead exists in conjunction with the right to “present evidence,” to “question

    any adverse witness,” and to “make a statement and present any evidence in mitigation. Appearance in court is “the means by which the petitioner effectuates the other rights conferred” by Rule 32.1.

    The conjunctive force of a defendant’s opportunity to appear is particularly important to the defendant’s right to “make a statement and present any information in mitigation” because “appearing before the court allows the [parolee] to plead his case personally to the [deciding]

    judge.”

    This right, known as the right of allocution, “ensures that the defendant has the opportunity to ‘personally address the court’ before punishment is imposed.” Without the physical meeting, the court reasoned, the judge could not experience the impressions of any personal confrontation wherein he or she attempts to assess the parolee’s credibility or to evaluate the defendant’s true moral fiber. Consequently, without the personal, physical interaction between a judge and a parolee, the force of the parolee’s other rights guaranteed by Rule 32.1 is diminished.

    Finally, after determining that the judge’s participation by videoconferencing in Thompson’s revocation hearing violated Rule 32.1, the court vacated Thompson’s term of re-imprisonment and

    remanded. The court resolved the second issue, whether video-conferencing violated Thompson’s due process rights, in a one-sentence footnote: “Because we hold that the judge’s participation by

    video-conference violated Rule 32.1, we need not address Thompson’s argument that holding the hearing by video-conference violated the Fifth Amendment’s Due Process Clause.”

    The Court then turned its analysis to the nature of the process that is due a parolee at a revocation hearing, wherein it laid out the minimum requirements of due process. Accordingly, a parolee must have an opportunity to be heard and to show either that he or she did not violate the conditions of release or, alternatively, that there are mitigating circumstances.

    Further, the Court held that the minimum requirements of due process include, in pertinent part, the “(c) opportunity to be heard in person and to present witnesses and documentary evidence; [and] (d) the right to confront and cross-examine adverse witnesses (unless the hearing officer specifically finds good cause for not allowing confrontation).

    Defense counsel suffers a multitude of communication challenges when not in the presence of the judge or the courtroom. Anne Bowen Poulin, a law professor at the Villanova University School of Law, stressed in her discussion of the use of videoconferencing technology that “[t]he attorney will be unable to gauge the emotional interactions and mood of the courtroom as effectively to determine when and how to intervene on the client’s behalf.”She also examined various studies

    that suggest that alliances form among those who are in the same physical location—alliances against those who appear via video-conference.In the case where neither the parolee nor counsel is physically present at the revocation hearing, the effectiveness of counsel is even more imperiled. The court in Thompson, although faced with the opposite situation in which the judge appeared by video-conference, foresaw this consequence and determined that “[t]he important point is that the

    form and substantive quality of the hearing is altered when a key participant is absent from the hearing room, even if he is participating by virtue of a cable or satellite link.” The physical separation of a parolee from counsel inevitably takes its toll on the effectiveness of the counsel, and this effect is most strongly felt by the communication between them. Some courts have tried to curb this problem by providing telephone lines that allow for privileged communication.

    However, this practice still cannot replace the quality of the attorney–client relationship created by in-person interaction.

    According to Poulin, the human interactions that foster the relationship are muted by the technology, which detracts from the defendant’s experience. Likewise, counsel cannot gauge the defendant’s mental and emotional state, and neither party can use nonverbal cues to communicate with each other during a proceeding, both of which are necessary to effective communication. Despite the surplus of communication problems caused by the use of

    video-conferencing technology, Poulin believes that these adversities will not rise to the level of ineffective assistance of counsel in the eyes of the courts.

    However, effective communication is so integral to the role of counsel, and counsel’s ability to effectively assist a client, that it is likely to be a key consideration when a court determines whether the right to effective assistance of counsel has been violated by the use of videoconferencing technology at a revocation hearing. In fact, at least one court has recognized that the use of technology to physically exclude a parolee from the courtroom, as well as from counsel, violates the right to counsel because of the detrimental effect it has on communication.

    In Schiffer v. State, the District Court of Appeal of Florida heard an appeal from a revocation hearing and a subsequent sentencing hearing in which the parolee participated via

    video/audio arrangement. The court found that, because the parolee had no means by which to access and to communicate privately with his counsel, his right to counsel was “obliterated.” The court held that “[w]e can imagine no more fettered and ineffective consultation and communication between an accused and his lawyer than to do so by television in front of a crowded courtroom with the prosecutor and judge able to hear the exchange.

    The use of videoconferencing technology in revocation hearings also violates the parolee’s due process right to confront adverse witnesses.

    As with the right to effective assistance of counsel, the parolee’s due process right “to be heard in person”works in conjunction with the due process right to confront adverse witnesses. Without the parolee’s physical presence, there is no effective right to confront adverse witnesses that satisfies the minimum requirements of due process. The Ninth Circuit addressed this issue in

    White v. White when it considered whether a bar to the presence of an adverse witness at a

    parole revocation hearing violated due process.

    The court held that “[w]here the facts are contested, the presence of adverse witnesses, absent good cause for their nonappearance, is necessary to enable the parole board to make accurate

    findings.” Therefore, without good cause, the appearance or the presence of adverse witnesses is necessary.

    A parolee has a strong interest in the right to confront adverse witnesses at a revocation hearing, a proceeding at which the parolee’s liberty is at stake. The parolee, who will either want to argue innocence or prove factors in mitigation, cannot effectively exercise a right of confrontation when appearing via vide-oconference, away from the physical presence of the adverse witnesses. Like in Wilkinson, a parolee who can observe witnesses only on screen will not be able to observe

    their demeanor and properly ascertain the accuracy and reliability of their proffered evidence, evidence that is often determinative of the parolee’s fate.

    Therefore, given the strength of a Claimant’s due process right of confrontation, and the insufficiency, or even the complete absence of good cause by the government, a Claimant should be able to successfully demonstrate that the use of vide-oconferencing technology

    to exclude the Claimant from being physically present in the same Hearing Room as the ALJ and other witnesses violates the Claimant’s due process right to confront adverse witnesses.

Categories: Social Security Cases | Tags: , , , , , | 3 Comments

ObamaCare Is Dead In The Water

 

ObamaCare was a poorly conceived and is a constitutionally deficient statute. The Supreme Court’s ruling upholding the law has simply made it worse. In the future, that decision is likely to be seen as a prime reason that the federal court judges should just judge and never legislate—even in the cause of rescuing an otherwise unconstitutional law from oblivion.

In the ObamaCare ruling, the Supreme Court correctly held that Congress could not impose the individual mandate as a constitutional regulation of interstate commerce and that Congress could not constitutionally use its spending power to coerce the states to expand Medicaid.

Rather than strike down the law, however, the court construed the insurance-purchase mandate and its penalty as a “tax” on the failure to have health insurance. The justices also interpreted the Medicaid-expansion requirements as optional—permitting states to opt out of these provisions while staying within the traditional Medicaid program. Given that interpretation, the court’s majority upheld the statute as constitutional.

The court’s determination to preserve ObamaCare through “interpretation” has exacerbated the law’s original flaws to the point that it has become palpably unworkable. By transforming the penalties for failing to comply with the law’s requirements into a “tax,” the court has given the public a green light to ignore ObamaCare’s requirements when it is economically beneficial. Law-abiding individuals, who might otherwise have complied with the law’s expensive purchase mandate to avoid being subjected to financial penalties, can simply now choose to pay a tax and not sign up for coverage. There is certainly no stigma attached to simply paying a tax, and noncompliance with the law’s other requirements—such as those imposed on employers—is arguably made more attractive on the same basis. This effect fundamentally undercuts Congress’s original purpose, which was to expand health-care coverage to the greatest number of people, not to improve federal revenues.

Similarly, having reviewed the likely costs and benefits, states are now taking advantage of the court-granted flexibility. Seven states, including Texas, Mississippi and Georgia, have so far opted out of the Medicaid-expansion provisions, and eight (with more certain to come) are refusing to create the insurance exchanges, leaving this to a federal bureaucracy unequipped to handle these new administrative burdens. As a result, a growing number of low-income Americans will be unable to obtain the free or cost-effective insurance that Congress originally meant them to have, although they remain subject to the mandate-tax.

On December 7, New Jersey Governor Chris Christie vetoed legislation establishing a state-run health insurance exchange. This was just after he had visited President Obama at the White House to discuss Superstorm Sandy cleanup costs. Governor Christie said he blamed President Obama for failing to provide answers that he needed to make a fiscally sound decision on the best way to comply with the ObamaCare law.

States have until December 14th to decide whether to establish a state-based exchange. They have more time to decide whether to partner with the federal government or to let federal bureaucrats design and run the state exchange. ((Santi, Angela, Christie Vetoes ObamaCare, Washington Times, Dec. 7, 2012)

Policy problems aside, by transforming the mandate into a tax to avoid one set of constitutional problems (Congress having exceeded its constitutionally enumerated powers), the court has created another problem. If the mandate is an indirect tax, as the Supreme Court held, then the Constitution’sUniformity Clause(Article I, Section 8, Clause 1) requires the tax to “be uniform throughout the United States.” The Framers adopted this provision so that a group of dominant states could not shift the federal tax burden to the others. It was yet another constitutional device that was simultaneously designed to protect federalism and safeguard individual liberty.

The Supreme Court has rarely considered the Uniformity Clause’s reach, but it cannot be ignored. The court also refused to impose meaningful limits on Congress’s power to regulate interstate commerce for decades after the 1930s, until justices began to re-establish the constitutional balance in the 1990s with decisions leading up to the ObamaCare ruling this summer. And although the court has upheld as “uniform” taxes that affect states differently in practice, precedent makes clear that a permissible tax must “operate with the same force and effect in every place where the subject of it is found,” as held in the Head Money Cases (1884). The ObamaCare tax arguably does not meet this standard.

ObamaCare provides that low-income taxpayers, who are nevertheless above the federal poverty line, can discharge their mandate-tax obligation by enrolling in the new, expanded Medicaid program, which serves as the functional equivalent of a tax credit. But that program will not now exist in every state because, as a matter of federal law, states can opt out. The actual tax burden will not be geographically uniform as the court’s precedents require.

Thus, having transformed the individual mandate into a tax, the court may face renewed challenges to ObamaCare on uniformity grounds. The justices will then confront a tough choice. Having earlier reinterpreted the mandate as a tax, they would be hard-pressed to approve the geographic disparity created when states opt out of the Medicaid expansion. But that possibility is inherent in a scheme that imposes a nominally uniform tax liability accompanied by the practical equivalent of a fully off-setting tax credit available only to those living in certain states. To uphold such a taxing scheme would eliminate any meaningful uniformity requirement—a result that the Constitution does not permit.

(The Opening For a Fresh ObamaCare Challenge, Rivkin, David B. and Casey, Lee A.p; WSJ, Dec. 6, 2012)

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Babies Born After Daddy Dies Cannot Collect Daddies Social Security Benefits.

The Supreme Court heard the case of Astrue v. Capato on March 19th to determine if a child conceived after the death of one of its parents is entitled to benefits under the Social Security Act. About 100 such cases are pending before the Social Security Administration (SSA).

The Court rendered its decision in May 2012.

In one of the more interesting cases during the 2011 Supreme Court term (at least those not involving Obamacare), the Court ruled that the Social Security Administration could deny benefits to the children of a deceased father where the children were conceived through in vitro fertilization after the father’s death.

The Third Circuit Court of Appeals had previously ruled in the children’s favor, but the Supreme Court reversed the lower court’s decision in a unanimous ruling (Astrue v. Capato, No. 11-159).

Eighteen months after the death of her husband from cancer, Karen Capato gave birth to twins. They had been conceived using Robert Capato’s sperm. Karen applied for the twins to receive Social Security survivor benefits under the theory that the twins were Robert’s biological children and entitled as beneficiaries.

Justice Ruth Bader Ginsburg wrote for a unanimous Court, which reversed the Third Circuit. The case hinged on a provision in the Social Security Act of 1939, which allows surviving family members of a deceased wage earner to collect monthly benefits. Ginsburg acknowledged, “The technology that made the twins’ conception and birth possible, it is safe to say, was not contemplated by Congress when the relevant provisions of the Social Security Act (Act) originated (1939) or were amended to read as they now do (1965).”

Ginsburg concluded that the Social Security Administration’s interpretation of the statute’s text was “better attuned to the statute’s text and its design to benefit primarily those supported by the deceased wage earner in his or her lifetime” compared with the Third Circuit’s analysis. Ginsburg also concluded that the agency’s interpretation was entitled to deference by the courts.

Robert Capato, who knew he was dying of terminal illness, froze his sperm so that his wife, Karen, could have more children after he died.  18 months later, Karen gave birth to twins after having in vitro fertilization.  Robert and Karen Capato’s twins were born in 2003 — 18 months after Robert Capato’s death. Karen Capato’s application for survivor benefits on behalf of the twins was rejected by the Social Security Administration, which said that for them to qualify, Robert Capato needed to be alive during their conception. A federal judge agreed, saying they had to qualify as Capato’s children before his death or qualify under state inheritance law as children who could legally inherit.

And in its first review of “posthumous conception,” the ­Supreme Court on 19 March struggled to align modern reproductive techniques to a federal law written in 1939.

The major issue that emerged in arguments in this case was the definition of a child and familial linkage according to the Social Security Act.  There is no doubt to the court that this was his child, but according to the current law, it appears as if the child’s conception and birth after the death of the father would end the child entitlement to Social Security benefits.

Lawyers for Capato argued that children of a parent should be covered by the Social Security Act regardless their time of birth.

Lawyers for the Social Security administration, as well as a few of the justices, seemed to be concerned with the implications of this case if found in favor of Capato. For instance, if there were loose paperwork around sperm donation centers, it could lead to multiple cases of children seeking Social Security benefits who would otherwise not be entitled to any.

This U.S. Supreme Court case is the first case testing whether children conceived through in vitro fertilization after the death of a parent are eligible for Social Security survivors benefits.

The case began in 2001 when Robert Capato was diagnosed with esophageal cancer. Before beginning treatments, he deposited sperm at a fertility clinic, and after he died, his wife Karen carried out the couple’s plan to conceive using Robert’s sperm.

In 2003, she gave birth to twins and filed for survivors benefits for the children based on her late husband’s social security taxes. But the Social Security Administration denied the claim, contending that because the twins could not inherit under Florida state law, where the couple lived, the children were ineligible for survivors benefits.

A federal appeals court in Philadelphia disagreed and Reversed the decision, saying the 1939 Social Security Act confers benefits on all biological offspring of a married couple.

The Supreme Court’s eventual decision in the case will have an immediate effect beyond the Capato family. More than 100 similar cases are currently pending before the Social Security Administration.

“Increasingly, members of the military — male members of the military before deployment — are freezing their sperm in case something happens and they don’t come back,” says Karen Capato’s lawyer, Charles Rothfeld.

The Justices wrestled with how to interpret a law written in 1939 and how to apply it to modern technology never imagined back then.

The government’s lawyer, Eric Miller, contended that since 1940, the Social Security Administration determined a child’s eligibility for survivors benefits based on whether that child can inherit under state law.

Justice Samuel Alito noted that the Congress that enacted this law in 1939 “never had an inkling about the situation that has arisen in this case … just as they had no inkling that any state would go off and take away the [inheritance rights] of children born to married people.”

Justice Elena Kagan called the government’s reading of the law “bizarre” in view of the fact that another section of the statute does not apply state inheritance law to stepchildren, grandchildren and even step-grandchildren when determining survivors benefits.

But that was about all the sympathy the Capatos got. Justices Antonin Scalia and Anthony Kennedy both raised an issue not before the court — whether a child conceived in vitro can be properly called a survivor since the child never lived with or was dependent on the deceased.

And when the Capatos lawyer rose to make his argument, he got pounded.

Justice Sonia Sotomayor asked whether Capato’s in vitro children would still qualify for survivors benefits if she had remarried. “A situation like that is what is making me uncomfortable because I don’t see the words ‘biological’ in the statute” or the word “‘marriage’ … within the definition of ‘child,'” she said.

Rothfeld replied that when Congress enacted the Social Security Act in 1939, more than 95 percent of the children in the United States were the offspring of married parents, so when Congress said a child is a child, “it would have had in mind the paradigm of the time.”

Justice Kagan asked whether Rothfeld could point to any other statutes around that time which supported the notion that when people said child, they meant child within a legal marriage.

Rothfeld said it was so clear back then that there was no need to define it further.

Justice Sotomayor asked if the child of an unmarried mother is excluded from automatic coverage.

Rothfeld responded that under the statute as written, “that’s correct.” After all, Rothfeld argued, in 1939 there was no way to be scientifically certain who the father of a child was. Marriage was a proxy for that.

But at the time this statute was written, “Wasn’t it also understood that the marriage ends when a parent dies?” Justice Ruth Bader Ginsburg asked.

Justice Stephen Breyer added that if the court ruled in Capato’s favor, “I don’t see how you’re going to save us from even worse problems.” Breyer said that the in vitro laws in every state are a very complicated subject and wondered whether the father could “just write a note and say this is my child, even if it’s conceived later ….”

Rothfeld replied that Robert Capato did in fact write such a note, but under state law, it wasn’t enough.

Chief Justice John Roberts said that under the court’s precedents, if a law is ambiguous, it defers to the agency’s interpretation and the Capatos would lose. Is there any reason, he inquired, that we shouldn’t conclude, “based on the last hour” of argument, that this law is at least ambiguous?

“It’s a mess,” added Justice Kagan.

Lawyer Rothfeld responded: “The problem is that we’re dealing with new technologies that Congress … wasn’t anticipating.”

It was a tough slog through the details of a law that was written at a time when, as Justice Samuel A. Alito Jr. said, “they never had any inkling about the situation that has arisen in this case.”

The Capatos married in 1999, and shortly thereafter he was diagnosed with esophageal cancer. Because they feared that his treatments might leave him sterile, Robert Capato began depositing sperm at a sperm bank in Florida.

He rallied at one point, and the couple had a naturally conceived son in 2001. But as his condition worsened, the Capatos began to talk about in vitro fertilization to give their son siblings. They signed a notarized statement that any children “born to us, who were conceived by the use of our embryos” shall in all aspects be their children and entitled to their property.

But the provision was not included in Robert Capato’s will at his death in March 2002.

After the twins were born, Karen Capato applied for Social Security survivor benefits. The Capatos’ naturally conceived son received the benefits; the twins did not. The Social Security Administrative Law Judge (ALJ) said the 1939 federal law looked to state laws to determine whether the benefit seeker is eligible to inherit property, and under Florida law, the twins were not eligible.

An appeals court reversed that decision, saying that the twins only had to meet the definition in another part of the law, which defined an eligible child simply as “the child or legally adopted child of an individual.”

But other appeals courts have found just the opposite, that the state laws are the places to look for determination of eligibility.

Assistant Solicitor General Eric Miller acknowledged that the law was ambiguous, because it seemed to provide two different definitions of a “child.” But he said the Social Security Administration had made the reasonable ­decision to require that a person seeking survivor benefits “must show that he or she would have been able to inherit personal property” under applicable state laws.

Alito seemed most skeptical of the government’s position, saying that perhaps Congress in 1939 did not think there was need to define the meaning of child. “They knew what a child was,” he said.

Charles A. Rothfeld, representing Capato, said the law was clearly meant to cover “the biological child of married parents” and the twins fit that definition.

What about a child born into a marriage but not a biological child, asked Justice Sonia Sotomayor. She wondered what would be the outcome if Karen Capato remarried but used her deceased husband’s frozen sperm to conceive.

Justice Ruth Bader Ginsburg pressed Rothfeld on whether the marriage between the Capatos ended with his death.

Justice Antonin Scalia wondered how children could be “survivors” if they were not conceived before their father’s death.

“What is at issue here is not whether children that have been born through artificial insemination get benefits,” Scalia said. “It’s whether children who are born after the father’s death get benefits.”

Chief Justice John G. Roberts Jr. noted that the court’s precedents say that when a statute is ambiguous, the courts should defer to the federal agency.

“Is there any reason we shouldn’t conclude based on the last hour that it’s at least ambiguous?” Roberts asked.

“It’s a mess,” piped in Justice Elena Kagan.

“I think the problem is that we’re dealing with new technologies that Congress . . . wasn’t anticipating at the time,” Rothfeld replied.

Karen Capato’s application for survivor benefits on behalf of the twins was rejected by the Social Security Administration, which said that for them to qualify, Robert Capato needed to be alive during their conception. One federal judge agreed, saying they had to qualify as Capato’s children before his death or qualify under state inheritance law as children who could legally inherit.

Few pro-life groups jumped into the fray. Representatives from the Susan B. Anthony List declined to comment. But Concerned Women for America sided with the mother: “We hope the Supreme Court recognizes, as other circuits have, that all biological children of married parents meet the definition of a child,” stated Mario Diaz, the group’s legal counsel. “To say otherwise would not only devalue children in legal theory, but, as we can see in this case, it would also have enormous tangible consequences.”

The Life Legal Defense Fund was the only pro-life group to file an amicus brief on behalf of the family seeking benefits. The group’s representatives noted in the brief that even though they supported the family’s claims, the court should consider in vitro fertilization’s problems, like the many frozen embryos from the process that clinics often discard.

“Children conceived by in vitro fertilization (IVF) are as much children entitled to love, respect, and protection as any other child,” the pro-life group wrote. “In no way should any qualms about the parents’ resort to IVF technology justify penalizing the children for the nature of their origin. … This does not mean, however, that IVF is an unalloyed good or that public policy should promote IVF.”

But Concerned Women for America’s Diaz argued that the main issue should remain that no matter how the child was conceived, a child is a child.

It’s worth noting that federal law caps the total amount of survivor benefits paid to any family. The Capato twins have three siblings, at least one of whom qualifies for benefits, so the issue there may be more about how the pot is divided than the size of the pot. (For example, if the father’s benefit amount is $1500.00 per month, then the children would be eligible to draw a maximum of $1500 per month, for a total benefit of $3000 per month to the family, until the youngest child reaches 18 years. If one child is eligible, then that child draws $1500; but, if 3 children are eligible, then each child draws $500 per month for a total of $1500.)

The case is Social Security Commissioner Astrue v. Karen Capato .

Categories: Social Security Benefits | Tags: , , , , , , , , | Leave a comment

Sexual Assault Conviction Thrown Out By (CAAF) Court Of Appeals For The Armed Forces.

Sexual Assault Conviction Thrown Out By Armed Forces Court Of Appeals.

by London Steversonon Monday, March 12, 2012 at 10:51am ·

Captain Nicholas Stewart, USMC.

 

The Court of Appeals for the Armed Forces threw out this week the sexual assault conviction of Marine Captain Nicholas Stewart, citing issues with the prosecution as well as improper action by a military judge.

Stewart, who served as a fighter pilot in Iraq, was convicted of sexual assault under a 2006 law that enabled the military to make charges in cases in which the victim was “substantially incapacitated” from alcohol. Stewart was accused by a longtime friend who said although she was not forced by Stewart, she was too inebriated to have consented to sex. Stewart challenged the accuser, but was convicted and sentenced to two years in prison. He was also registered as a sex offender.

As McClatchy reported Thursday, Stewart’s case was appealed, and the court found that the prosecution lacked evidence to support the accuser’s claims. The court also stated in its ruling that the military judge at Stewart’s initial trial had “created the framework for a potential double jeopardy violation” by having the jury re-deliberate the charges against Stewart. In the first deliberation, Stewart was found not guilty. However, when asked by the judge to consider what was essentially the same charge, the jury found the Marine to be guilty.

“As a result of the military judge’s instructions, [the jurors] were placed in the untenable position of finding Stewart both guilty and not guilty of the same offense,” wrote the appeals judges.

The 33-year-old Stewart, who had served more than a year of his sentence, expressed relief after the appeals court’s decision.

“I am grateful for this long-awaited proof of the integrity of our judicial system,” he said. “I look forward to continuing to serve our country and our Marine Corps.”

Stewart’s case illuminates issues that some have taken with the 2006 law. As McClatchy reported last year, the law has been described as “flawed” for its confusing language, as well as the fact that it shifts the burden of proof to the accused.

 

However, with recent Pentagon reports showing that sexual assault in the military has taken a dramatic rise, others worry that not enough is being done to prevent assault. After the report, which showed a 64 percent jump in assaults since 2006, was released, Secretary of Defense Leon Panetta announced plans to create new initiatives aimed at curbing the growing problem.

Several cases invoking the 2006 law have made the news recently, including the charging of three Air Force cadets with sexual assault. Two of those cadets were charged with assaulting women who were “substantially incapacitated.” These cases were also reportedly complicated by a lack of forensic evidence.

 

Compare this case to the Webster Smith case and you will see how fickle this court can be. The Smith Case was appealed to the Supreme Court. Most Supreme Court watchers had expected the Supreme Court to hear the case or at the very least to give an explanation of why not. We were all sorely disappointed.

 

 

Coast Guard Academy Cadet Webster Smith

This Smith Case implicated a deep federal circuit conflict regarding the standard of review that applies when a trial judge’s restriction on the cross-examination of a prosecution witness is challenged on appeal as a violation of the Confrontation Clause. The Court of Appeals for the  Armed Forces (CAAF) held that the standard of review is abuse of discretion rather than de novo. Applying the former standard, the court rejected Webster Smith’s Confrontation Clause claim by a vote of 3-2.

The Courts Of Appeals Are Deeply Divided Over What Standard Of Review Applies To Confrontation Clause Claims Like Webster Smith’s. The CAAF employed abuse-of-discretion review in resolving Smith’s Sixth Amendment challenge to the military judge’s restriction on the defense’s cross-examination of Shelly Roddenbush. That approach conflicts with the holdings of five circuits, which consider comparable Confrontation Clause claims de novo, reserving abuse-of-discretion review for non-constitutional challenges. For example, the Seventh Circuit has stated that “[o]rdinarily, a district court’s evidentiary rulings are reviewed for abuse of discretion.

However, when the restriction [on cross-examination] implicates the criminal defendant’s Sixth Amendment right to confront witnesses against him, … the standard of review becomes de novo.”

The First, Fifth, Eighth, and Tenth Circuits have adopted the same approach.

Six other circuits, by contrast—the Second, Third, Fourth, Sixth, Eleventh, and District of Columbia Circuits— Take  the same approach that CAAF does, applying abuse-of-discretion review even when a restriction on the cross-examination of a prosecution witness is attacked on constitutional grounds. The Sixth Circuit, for example, stated in one case that “[defendant] argues that his right to confrontation was violated when the trial court ‘unfairly’ limited his cross-examination of [a] government witness .… We review the district court’s restriction on a defendant’s right to cross-examine witnesses for abuse of discretion.”

In short, CAAF’s use of an abuse-of-discretion standard in the Webster Smith Case perpetuated a clear—and recognized—conflict in the circuits.

The Question Presented Was Recurring And Important, And The Smith Case Was A Good Vehicle For Deciding It.

The circuit conflict warranted resolution by the Supreme Court. It was indeed a sad day for Supreme Court watchers when that court of Last Resort side stepped an issue of monumental importance without a word of explanation.

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I Will Fight No More Forever.

I Will Fight No More Forever.

America‘s fighting men have come in many guises, shapes and sizes. They have had to fight all of America’s enemies, both foreign and domestic. Cadet Webster Smith had to fight his own senior officers, friends, and mentors. In the end he was proud. He had fought the good fight. Even TIME magazine carried the quote of the first cadet in Coast Guard history to be tried by a General Court-martial.

http://www.time.com/time/quotes/0,26174,1209244,00.html

Less than 60 days after the verdict was rendered in the Webster Smith case, I predicted that the case would make it all the way to the Supreme Court.

Supreme Court justices are not elected. They are appointed with the advice and consent of the Congress. The Nine Justices of the Supreme Court are the least democratic branch of the federal government. They have no constituency. They do not have to conform to the biases of the majority. They are the Court of Last Resort; so, they are infallible. With few exceptions, they have dealt evenhandedly with all of America’s citizens.

They do not have to sit for re-election. They are appointed for life. They are totally isolated from busy bodies on the Right or Left Side of the political spectrum. With one stroke of the pen, they may act to curb injustices, correct unsavory attitudes, and breathe new life into a living Constitution.

Historically we have looked to them to solve our most vexing social problems. They are America’s ultimate arbiters of justice; and, that includes military justice.

Aside from the Webster Smith Case, I cannot think of any case or incident in Coast Guard history that affected more directly the hearts, minds, and daily lives of all members of the United States Coast Guard.

The U.S. Coast Guard Court of Criminal Appeals had to review the Webster Smith case. It had no choice. Article 66 of the Uniform Code of Military Justice, requires the Coast Guard Criminal Appeals Court to review all cases of trial by court-martial in which the sentence as approved by the Convening Authority extends to dismissal of a cadet from the Coast Guard, and/or a dishonorable or bad conduct discharge, unless the accused waives appellate review. Webster Smith did not waive appellate review. He appealed his conviction. Oral argument in the Case of The Appeal of the Court-martial Conviction of Cadet Webster Smith was scheduled for January 16, 2008 in Arlington, Virginia.

A legal brief filed by his lawyers claimed the convictions should have been thrown out because the defense team was not allowed to fully cross-examine one of his accusers during Smith’s court martial. They said that meant the jury didn’t hear testimony that the accuser, a female cadet, Shelly Roddenbush, had once had consensual sex with a Coast Guard enlisted man and then called it sexual assault. If she lied once, she very well could have lied again.

The Coast Guard Court of of Criminal Appeals is made up of Coast Guard Officers. It has the power to decide matter of both fact and law. Decisions of the Coast Guard Court of Criminal Appeals may be appealed to the Court of Appeals of the Armed Forces (CAAF). It is made up of five civilian judges, appointed to 15 year terms. It decides only issues of law. Its decisions may be appealed to the U. S. Supreme Court. The Webster Smith Case followed this long and winding path all the way to the Supreme Court.

The U.S. Supreme Court has refused to hear the appeal of Webster Smith. The justices declined to hear the case without comment.

Webster Smith was proud of his decision to fight the good fight all the way to the end of the road. See TIME magazine June 29, 2006.

http://www.time.com/time/quotes/0,26174,1209244,00.html

https://www.amazon.com/author/cgachall.blogspot.com

Categories: Military Justice | Tags: , , , , , , , | 1 Comment

Journalist Sues Obama To Prevent Indefinite Detention of American Citizens.

Here is a story you will not find in the mainstream media. You will not read it in the New York Times, Washington Post, Los Angeles Times, or hear about it on CNN, MSNBC, or anywhere else.

Less than a month after the National Defense Authorization Act (NDAA) was signed into law, President Barack Obama faces a lawsuit because of its highly controversial provisions regarding the detention of suspected terrorists.

Attorneys Carl J. Mayer and Bruce I. Afran filed a complaint against Obama and Secretary of Defense Leon Panetta Friday in the Southern U.S. District Court in New York City on behalf of journalist Chris Hedges. The complaint states that the law violates the First and Fifth Amendments.

 

The $662 billion defense spending bill contained a controversial section that required terrorism suspects to be detained by the military without trial, regardless of where they were captured.

Despite language in the law that states it does not affect existing authorities relating to the detention of U.S. citizens or others captured within the U.S., Hedges claims that it still allows the government to detain Americans indefinitely without trial.

“I spent many years in countries where the military had the power to arrest and detain citizens without charge,” Hedges explains. “I have been in some of these jails. I have friends and colleagues who have ‘disappeared’ into military gulags. I know the consequences of granting sweeping and unrestricted policing power to the armed forces of any nation. And while my battle may be quixotic, it is one that has to be fought if we are to have any hope of pulling this country back from corporate fascism.”

 

While signing the bill, Obama issued a signing statement in which he pledged that the new laws would not violate Americans’ constitutional rights. But human rights advocates said that did not prevent future administrations from abusing the law.

The complaint alleges that Hedges could fall within the scope of the law. As part of his job as a journalist, he has direct communications with persons who are likely to be deemed engaged in hostilities with the United States. The detention provisions cover anyone who has “substantially supported” or “directly supported” “al-Qaeda, the Taliban, or associated forces that are engaged in hostilities against the United States or its coalition partners.”

Hedges says that the controversial bill passed “because the corporations, seeing the unrest in the streets, knowing that things are about to get much worse, worrying that the Occupy movement will expand, do not trust the police to protect them. They want to be able to call in the Army. And now they can.

 

This will render null and void the Writ of Habeas Corpus, that is, Latin for  “you have the body” Prisoners often seek release by filing a petition for a writ of habeas corpus. A writ of habeas corpus is a judicial mandate to a prison official ordering that an inmate be brought to the court so it can be determined whether or not that person is imprisoned lawfully and whether or not he should be released from custody. A habeas corpus petition is a petition filed with a court by a person who objects to his own or another’s detention or imprisonment. The petition must show that the court ordering the detention or imprisonment made a legal or factual error. Habeas corpus petitions are usually filed by persons serving prison sentences. In family law, a parent who has been denied custody of his child by a trial court may file a habeas corpus petition. Also, a party may file a habeas corpus petition if a judge declares her in contempt of court and jails or threatens to jail her.

In Brown v. Vasquez, 952 F.2d 1164, 1166 (9th Cir. 1991), cert. denied, 112 S.Ct. 1778 (1992), the court observed that the Supreme Court has “recognized the fact that`[t]he writ of habeas corpus is the fundamental instrument for safeguarding individual freedom against arbitrary and lawless state action.’ Harris v. Nelson, 394 U.S. 286, 290-91 (1969). ” Therefore, the writ must be “administered with the initiative and flexibility essential to insure that miscarriages of justice within its reach are surfaced and corrected.” Harris, 394 U.S. at 291.

The writ of habeas corpus serves as an important check on the manner in which state courts pay respect to federal constitutional rights. The writ is “the fundamental instrument for safeguarding individual freedom against arbitrary and lawless state action.” Harris v. Nelson, 394 U.S. 286, 290-91 (1969). Because the habeas process delays the finality of a criminal case, however, the Supreme Court in recent years has attempted to police the writ to ensure that the costs of the process do not exceed its manifest benefits. In McCleskey the Court raised barriers against successive and abusive petitions. The Court raised these barriers based on significant concerns about delay, cost, prejudice to the prosecution, frustration of the sovereign power of the States, and the “heavy burden” federal collateral litigation places on “scarce federal judicial resources,” a burden that “threatens the capacity of the system to resolve primary disputes.” McCleskey, 499 U.S. at 467.

The Court observed that”[t]he writ of habeas corpus is one of the centerpieces of our liberties. `But the writ has potentialities for evil as well as for good. Abuse of the writ may undermine the orderly administration of justice and therefore weaken the forces of authority that are essential for civilization.

The predominant inquiry on habeas is a legal one: whether the “petitioner’s custody simpliciter” is valid as measured by the Constitution.

The writ of habeas corpus is the procedure by which a federal court inquires into illegal detention and, potentially, issues an order directing state authorities to release the petitioner. As described by the United States Supreme Court, “its function has been to provide a prompt and efficacious remedy for whatever society deems to be intolerable restraint.

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