Month: June 2024

Now – just six cases yet to be decided

by Dave

The case of “Guns for Domestic Violence Abusers” was decided yesterday (June 21) in the Rahimi decision. As a practical matter, I am glad, as my heart goes out to the victims of domestic violence. Victims must be able to convince a judge to issue a restraining order that includes a finding that the defendant posed a physical threat to her or her child.

The case really focuses if gun ownership is a right or privilege. Fortunately, eight justices ruled upheld the regulation, ruling that handgun ownership can be temporarily suspended following for a court finding of a credible threat to the spouse or child.

The one dissenter to the case was Justice Clarence Thomas, who would have found the regulation violated criteria set down in the Bruen decision. He argued had to be sufficient “historical tradition of firearm regulation” to justify the suspension.

Both prior Supreme Court decisions (Heller (2008), Bruen (2022)) made firearm regulations more difficult. The prior decisions also split the court between liberal/moderate and conservative justices. Justice Scalia wrote the Heller decision, and was opposed by the four liberals/moderates on the bench (Breyer, Stevens, Ginsburg and Souter). The two moderates on the bench would be Justices Stevens and Souter, both nominated to the Court by Republican presidents.

Justice Thomas wrote the Bruen decision, which was opposed liberal justices Breyer, Sotomayor and Kagan.

See Wikipedia summary of Bruen:

The issue really comes down to public safety verses prior conservative interpretation of the Second Amendment in Heller and Bruen. It is not contested that there can be lawful restrictions on what can be bought or owned by the public, such as military weapons, designed specifically for mass destruction. It is just far gun restriction can go that pits liberals against conservatives.

In Heller, the dissent as written by Justice Breyer completely disagrees with the idea that the objective of the Second Amendment was to grant a general right to gun ownership. Instead, he argues it was to allow officers in the state militia (this pre-dates the standing army as we have today) to store their arms in their home. The conservatives seem to ignore the first 13 words of the amendment. (Note Judge Thomas did not do this; his opinion is exactly as shown below)

Second Amendment: A well regulated Militia, being necessary to the security of a free State, the right of the people to keep and bear Arms, shall not be infringed.

One can contrast this to the First Amendment, which is an straight forward statement on what the US Congress could never do:

First Amendment: Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof; or abridging the freedom of speech, or of the press; or the right of the people peaceably to assemble, and to petition the Government for a redress of grievances.

How I wish our constitution could be amended just to say, gun ownership (like a driver’s license) is a privilege not a right.

As Roberts wrote in the case published yesterday (Rahimi case), historically there are many such prohibitions, like those on the possession of firearms by “felons and the mentally ill,” are “presumptively lawful.” Further, he wrote that the prior ruling (Bruen case) does not require a “historical twin.” Rather than consider the circumstances in which Section 922(g)(8) was most likely to be constitutional, the panel instead focused on hypothetical scenarios where the provision might raise constitutional concerns. The majority opinion was joined by both liberals and conservatives.

The Rahimi case will be considered a landmark case. I can not say I honestly read all of Judge Thomas opinion. But, temporarily suspending the defendant’s right to own a gun, while he is currently under a restraining order from his spouse and child, seems like a very practical means of preventing a violent individual to commit murder. Judge Thomas seems very upset that the rights of a law-biding citizen (Mr. Rahimi) was suspended but zero concern for the victim of domestic violence who I am certain fears for her life.

Six justices added concurring opinions. I particularly liked Justice Sotomayor, who focused on why we have such regulations, to begin with:

To start, the Government has a compelling interest in keeping firearms out of the hands of domestic abusers. A woman who lives in a house with a domestic abuser is five times more likely to be murdered if the abuser has access to a gun.

So, it is one down and six to go.

Stay tuned,

Dave

Rahimi Case opinion

Note I state that Justice Thomas dissent included the full Second Amendment, Justice Gorsuch concurring opinion presents just the last 14 words. The amendment contains just 27 words in total.

I enjoyed Justice Sotomayor’s analysis of Judge Thomas dissent. She writes:

The dissent reaches a different conclusion by applying the strictest possible interpretation of Bruen. It picks off the Government’s historical sources one by one, viewing any basis for distinction as fatal.

Also she writes:

This case lays bare the perils of the dissent’s approach. Because the dissent concludes that “§922(g)(8) addresses a societal problem—the risk of interpersonal violence—‘that has persisted since the 18th century,’” it insists that the means of addressing that problem cannot be “‘materially different’” from the means that existed in the 18th century. Post, at 7. That is so, it seems, even when the weapons in question have evolved dramatically.

Cases to be decided by the Supreme Court (updated June 21)

by Dave

The following was updated to include more information on each of these cases.

The following link describes seven very important cases, yet to be decided by the Supreme Court. There are at present 21 undecided cases, but these are the important ones. I would expect all cases to be decided by July 12, 2024. I think they can push back the summer adjournment date, to complete the remaining cases.

I’ve used the same titles as in the CNN article, which unless the CNN article is read, can give the wrong impression. This is particularly true in case 3, where one convicted rioter wants a charge of obstructing an official proceeding dropped because the defendant claims it was based on a law that was never intended for this purpose. The result will be chaotic to the courts because many rioters have been charged under this statute and their sentences can be reduced or voided by the appeals court. Donald Trump for his actions, is also charged under this statute.

It would also help in securing presidential pardons for rioters, if the Supreme Court rules in favor of the Fischer case. As a practical matter, these are not people you would rather not release early, but they should not be held if the law is now considered invalid.

CNN: Abortion, guns, Trump and more: These are the Supreme Court’s biggest remaining cases

1. Trump claims ‘absolute’ immunity

2. Abortion for health in emergencies

3. January 6 rioters seek to shorten sentences (‘Fischer Case’)

4. Guns for domestic abusers

5. Government regulation of Facebook

6. Cleaning up online ‘disinformation’

7. Government regulations threatened (Chevron deference to agency decisions)

Cases 1 and 3 will have a direct impact on the January 6 charges against Trump. The Fischer case could allow rioters of the Capitol to have some of the charges against them dropped by the appeals court. Also, the charges against Trump might be reduced from four to two.

Case 2 is the result of laws banning abortion unless it is a life or death situation with the pregnant woman. This case will examining bans on abortion which prohibit doctors from treating woman, where there is real health consequences if they do not have abortion.

Case 4 centers on state laws which restrict gun ownership because individuals were guilty of crimes of domestic abuse. The interpretation of Second Amendment rights by the Court of gun ownership, was a classic clash between conservatives vs liberals. The case will be interesting as it is a balance between gun ownership rights and public safety, which is a legitimate government responsibility. After the heated bump stock decision, I am certain all liberals will agree the restrictions are constitutional. To win, they must convince two conservatives to vote with them.

Case 5 concerns actions against Facebook for prohibiting misinformation on their platform. State laws which would limit or ban this practice. Facebook routinely refused to allow many myths about Covid-19 and unfounded personal attacks. I think the liberals will support Facebook’s right to refuse to post misinformation. Other postings, like the elections in either the US and Brazil, were rigged, generally receive disclaimers instead of outright deletions.

Case 6 comes from the Biden’s administration policy of advising social media platforms, that their sites contain false information. They are not regulating the content of the platform, yet there are serious free speech issues at play. I believe the liberals on the court will uphold the government’s position.

Case 7 is about the “Chevron doctrine” which gives deference to the judgement of the agency in regards to decisions requiring their expertise. For practical reasons, in determining air and water standards, the ability of agencies to set their own rules is important. You can expect the liberals on the court to want to keep the Chevron doctrine as it is, and conservatives will want to discard it, or make it much more restrictive.

See link: Supreme Court likely to discard Chevron

Per Wikipedia:

Chevron is one of the most important decisions in U.S. administrative law. It has been cited in thousands of cases since its issuance in 1984.[4] Thirty-nine years later, in May 2023, the Supreme Court granted certiorari to reevaluate Chevron in Loper Bright Enterprises v. Raimondo, No. 22-451. A decision is expected in the first half of 2024.[5]

Wikipedia: Chevron U.S.A., Inc. v. Natural Resources Defense Council, Inc.

The Chevron decision was decided by a 6-0 vote by the Supreme Court. If it is overturned, then the three liberals on the court will likely have a strongly worded dissent, based on Stare Decisis:

Stare Decisis—a Latin term that means “let the decision stand” or “to stand by things decided”—is a foundational concept in the American legal system. To put it simply, stare decisis holds that courts and judges should honor “precedent”—or the decisions, rulings, and opinions from prior cases.

Quite bluntly, Chevron was a practical decision that kept very nuanced challenges to agencies’ decisions out of the realm of the courts. The only change to Chevron is the makeup of the court.

In the next two weeks or so, all these cases will be decided. The court is now six conservatives and three liberals. For liberals to win, they must convince at least two conservatives to join them. There’s a lot of speculation on social media and cable networks on how they might decide. We will know soon enough.

Stay tuned,

Dave

Hunter Biden’s Conviction

by Dave

Just after posting that the justice system is being attacked by Donald Trump and others Marjorie Taylor Green, Matt Gaetz, Sean Hannity of Fox News, James Comer, Mike Johnson and others, Hunter Biden got convicted. Yes, when there is hard evidence against the defendant, a jury generally finds the person guilty. That’s exactly what the judge tells them to do, to go on what they heard and saw in the courtroom.

I wanted to note what a marked contrast between Trump and all the hot rhetoric of being “100% innocent” and a completely “rigged show trial” to Hunter’s acceptance of the verdict after he was found guilty. He wasn’t going to trash the prosecutor or the courts.

“In a written statement, Hunter Biden said he was disappointed by the outcome but grateful for the support of family and friends.”

I would say this shows some real class. Trump desperately wanted to get in the spot light, once again identifying Joe Biden as the real criminal:

“Trump’s campaign called the verdict “nothing more than a distraction from the real crimes of the Biden Crime Family.” Trump and his allies have pressed unsubstantiated or debunked allegations that Joe Biden acted while vice president to advance his family members’ foreign business interests.”

Others parroted the same line. See link from Politico.

The “Biden Crime Family,” comes from Rep. James Comer and the absurd impeachment inquiry, which totally fell apart, when their chief accuser was arrested for lying to the FBI.

Bottom line for Democrats and Republicans, DOJ and the FBI does not hand out favors, at least with this administration. No one is above the rule of law.

Stay tuned,

Dave

Judicial System under Attack

by Dave

House Majority leader, Mike Johnson, and Donald Trump are pushing hard the idea that our court system and law enforcement treat Democrats differently than Republicans. The current buzzword is a “two tier system.” This is all a lot of political rhetoric. If Donald Trump had won in court, you would hear a lot of praise for our judicial system. He would be doing a victory lap right now, on how the jury had exonerated him.

Representative Maria Salazar of Miami compared the trial that Donald Trump got with those in communist countries like Cuba where you are guilty until proven innocent. Representative Matt Gaetz was so angry at the FBI, that he suggested shutting it down. But, I didn’t hear any real protest when the FBI executed a search warrant on President Biden’s homes.

I will readily admit that our judicial system is far from perfect. But, rich defendants have a lot better chance of either beating the system, or getting off with light sentences than poor people. The sort of defense that Senator Bob Menendez, Donald Trump, Hunter Biden or Steve Bannon can mount is far more than the average citizen. It is of course, a lot more expensive. Yes, I would like to be in the tier of the very wealthy if accused of a crime. The rich man’s tier is second to none.

It never hurts to bring a big loudspeaker to court. By this, I mean social media or even better cable network stations to court. This is where Trump and most recently Steve Bannon have blasted the judicial system. Bob Menendez and Hunter Biden have also been interviewed multiple times, so they can sort of plead their case to the public.

In Senator Menendez case, it really helps that he is a sitting Senator, as some of the very important evidence against him, will not be presented to the jury, because of Congressional immunity. A sitting president and cabinet officials may not be indicted for civil crimes committed as part of their official duties. A good case of this was a lawsuit launch against Hillary Clinton, as Secretary of State, claiming she had neglected her responsibly in the death of a military serviceman in Libya. The lawsuit never went to court because she had immunity.

So, we have an imperfect law enforcement and judicial system. It has improved immensely over the last 50 years. The integrity of our court system and the safety of law enforcement officers comes above all other considerations, so both Steve Bannon and Donald Trump are wrong to say the courts are attempting to silence them. They have placed restrictions on their public statements. They can not attack, the families of judges or employees of the court. This is exactly what Trump did during the business fraud case.

It is easier for some to get a fair trial. If your English is poor, and need to rely on a public defender, you are at a disadvantage. Your prior arrests and convictions can be introduced into evidence. Also, being male and young should not matter, but it certainly can factor into a jury’s thinking. I don’t think being either Republican or Democrat is a particularly strong factor. The judge in Trump’s trial, reminded the jury to find the defendant guilty or not guilty solely on the evidence presented in the courthouse. A judge has tremendous authority to dismiss a case where the evidence is lacking or severely compromised.

“Innocent until proven guilty,” is told to every jury. It is true that criminals are often found innocent, because the evidence was mishandled or is conflicting. When the Supreme Court ruled that every defendant was entitled to an attorney, President Nixon strongly criticized this decision as a tough law and order philosophy. Miranda rights are being cut back, by the Supreme Court. See link at end.

Where the evidence is strong, it essentially overrides all of the prejudices. What really convinced the jury of Trump’s guilt was likely the documentary evidence. His trial was mostly what is in emails bank deposit statements and signed checks.

Society has a certain urgency to lock up violent offenders, particularly if they just arrived from our southern border. I am very glad that for DNA evidence, which can be used to exonerate and well as convict someone. There are a number of cable network shows, which highlight people who have been incarcerated on weak evidence. Everyone convicted of a crime has the right to an appeal. This is another safety check, helping to ensure equal justice.

I am reminded of a cartoon of a judge telling a defendant, “Crime does not pay, at least at your level.” Crime is apparently profitable. Steve Bannon, just 24 days before he has to go to prison, is plugging his podcast station and claiming to be the victim of partisan persecution and a violation of his free speech rights. He’ll be back in court in September on fraud charges, accused of pocketing the money for the private charity of “Build the Wall” which by the way, built nothing.

Donald Trump, claiming to be a victim of (let’s count) Manhattan DA, E. Jean Carrol (defamation victim), judge Engoron (business fraud) and the special prosecutor, Jack Smith, and of course, the DOJ, FBI and Joe Biden, raked in 52 million dollars following his guilty verdict in the the hush money case. I have to include Michael Cohen made 4.4 million dollars on his book and public appearances, after his conviction. Of course, Hunter Biden also wrote a book, which likely is selling quite well.

What ultimately matters, is the hard evidence against the accused. No expensive defense team can win, when the testimony collaborated with documents or other evidence points to guilty.

Stay tuned,

Dave

Supreme Court Intervention in the Hush Money case

by Dave

The Supreme Court will not “intervene.” It isn’t the way the system works. Supreme Court only hears cases from the lower courts. The trial court will finish their job on July 11, 2024 with the sentencing of Donald Trump. I believe his sentence will be stayed, meaning it will be put on hold until after all appeals have been exhausted.

After sentencing, Donald Trump, will likely submit an appeal, which the appellate court must hear. He can ask that this appeal be expediated. I don’t think he will ask the case be expediated. Losing his appeal doesn’t really help his campaign.

I think Trump likes the attention. No gag order stops Trump from blaming the Biden administration for the trial and verdict. This is totally baseless. No gag order at present stops Trump from claiming that the Department of Justice and FBI are out-of-control. His latest claim is that FBI agents were “locked and loaded” to assassinate him when they entered Mar-a-Lago on August 8, 2022. Note that the Director of the FBI is Christopher Wray, appointed by Donald Trump, but generally at hearings gets the most criticism from Republicans.

It is very rare that the Supreme Court expediates a decision. In December 2023, the Special Counsel Jack Smith sought to expediate the issue of presidential immunity, by having the Supreme Court hear the case before the appeals court had ruled. Donald Trump, fearing that he might lose in the Supreme Court argued that the Appellate Court should first complete its review.

The Supreme Court is powerful. It uses this power cautiously. It can overturn verdicts, if the trial has violated the rights of defendants. If for example, Donald Trump, were forced to testify, then a Constitutional issue would be evident. Judge Merchan let the jury know that Donald Trump had the right not to testify, and the jury could not use this fact in their deliberations.

Our legal system is not in tatters. Our FBI and Department of Justice are very actively enforcing the law, in partnership with the States and local authorities. I want them to continue to investigate all areas of criminal activities, including financial and election law crimes.

Stay tuned,

Dave

Trump calls on supreme court to annul his guilty verdict in hush-money case

Hush Money Case – the coming sentencing and appeal

by Dave

There has been a lot of speculation on the sentencing. It will occur on July 11, and no one really knows. What most commentators suggest, is that the sentence will be “stayed” (put on hold) until after all appeals are exhausted, which is well after the November elections. So, unlike TV dramas, the defendant is not hauled away in handcuffs and sent to prison.

Similarly, no one really knows what Trump’s lawyers will put in the appeal, but I believe it will contain a long list of “reversible” errors. An excellent article on this is posted below from Politico. The manner in which misdemeanor crimes can become a felony charge, as provided in Judge Merchan’s instructions, is likely to be issue #1 for the Appellate Court to review.

The Politico article then goes on with issues #2 to #5. Issue #2 is Stormy Daniels testimony of the sordid details of her encounter with Trump in his bedroom. This was a violation of Judge Merchan’s order, and the defense argued for a mistrial, when after her testimony. There are likely other issues related to evidence presented during the trial. Anything defense objection which Merchan denied is ripe for review.

Issue #3 is the limitations place on one of Trump’s potential witnesses, Bradley Smith, an expert in election finance law. The judge ruled that Smith could not testify whether Trump had violated the election finance laws. The defense then decided not to call Smith.

Issues #4 and #5 are ones that will make Trump happy. It’s not that he can actually win on these issues but have them identified in an appeal gives them some appearance of credibility. Issue #4 is evidence that the Judge Merchan was conflicted, and should have recused himself. Issue #5 is that there should have been a change of venue, as this case involved federal election law, so it should never have been tried in the Manhattan courthouse.

Somewhere in the appeal, the name of Attorney Michael Colangelo might be slipped in, just for the conspiracy angle (a connection with DOJ). He was a senior DOJ attorney, very familiar with Trump’s finances, who was hired to by DA Alvin Bragg in help in the case against Trump. There has no connection between DOJ and the Manhattan office on this case.

See Politico link:

https://www.politico.com/news/2024/06/02/trump-conviction-appeal-juror-00161110

The Appellate Court will not only be looking at violations of the law, but also at the admissibility of evidence used to convict him.

I believe the appeal will not be submitted until mid August, and it will be a prime opportunity for Trump to be blasting away at the Department of Justice, the FBI, and the “Biden apparatus” in an attempt to stop him. I believe the appeal will begin with issues 4 and 5, that the trial should never had taken place (change of venue) and Merchan should never had been the judge. Trump’s team can load up the appeal with many issues that are frivolous, for political reasons.

Trump can ask for an expediated appeal – but I don’t think he will. He’s too concern he will lose the appeal before election.

– The Manhattan case Appeals Political Circus

Trump’s supporters will be talking about the “excellent” appeal, and how the quickly and inevitable, a reversal will be, by the court. They will not waste a minute on the details, and just see how fast they can get on Judge Pirro or Sean Hannity’s show on the Fox network. Trey Gowdy and others will lead the charge. Trump’s legal spokesperson, Alina Habba will also join the conspiracy fray, as Biden’s scheme to derail Trump’s candidacy has now been exposed in the appeal (which no one will actually read).

Expected the words “weaponize” and “lawfare” to be used so often, that any significance will be pounded into the ground by political pundits. For example, “Biden is committed to total lawfare. He has politized and weaponized the DOJ and FBI to go after his opponents. We won’t stand for it!” Follow this by “Send your checks to MAGA, PO address … .

This Manhattan DA office will issue a strong reply to the appeal. Commentators on CNN and MSNBC will quickly note the appeal is re-hashing settled disputes, and has a slim or no chance of winning.

Nothing is likely to be resolved by the Appellate Court until the November elections. Even if the Appellate Court did rule, Trump’s team would immediately request a review by a higher court. They could even petition the Supreme Court to take up the case, as a due process challenge.

I predict with Judge Merchan long experience as a judge dealing with cases in finance law, acted solely on the law and evidence in this case, so the jury’s verdict of guilty on all 34 counts will stand.

Stay tuned,

Dave

Make America Worse than ever before

by Dave

Trump has attacked NATO, which without it, Ukraine would have long been taken over by Russia. He has attacked climate change, and withdrew our participation in the Paris Accords, in which we can take a leadership role in reducing the world’s dependence on non-renewable resources. He sees climate change as a hoax. He will gut the IRA, which will be a huge setback for Biden’s initiatives to reduce CO2 emissions.

He and the Trump organization have no respect for the law. He claims the charges against him are baseless. But, every time he goes to court he loses. It is because prosecutors can present irrefutable evidence. He loses on appeal.

His dishonesty is astounding. I don’t think any one can tell more lies in a single rant than Trump. On his social media site, in front of a courthouse or at his rallies, it’s non-stop falsehoods. He is detached from truth.

In the coming months, I will make the case why Trump must not be our next president. Your comments, even to the contrary will be posted. If there is a particular issue for the 2024 election you would like me to explore further, please let me know.

Stay tuned,

Dave

Jury Duty

by Dave

I have served on a jury twice, one civil and the other criminal. My experience is pretty similar to others. It is a learning experience, because you only get a vague idea of what the defendant is being accused, until it is explained in detail at the very end of the trial.

The instructions are very clear. You must make your decision only based on the evidence presented in court and the law as explained by the judge. This is your job once you are seated as part of the jury. And it is weird, because in life, you make decisions based on your feelings at the time and often times, after talking to friends or family about different options.

In the jury room, you don’t know the people except as you learn from the permissible chatter of where to have lunch and other topics. A lady in the jury was a seamstress, and I asked her questions about curtains for my house.

Inside the jury room, the floor person is selected. In both cases, we did well, as they were good listeners. In the criminal case, we were divided on an important issue. We kept going back to the testimony given by both prosecution and defense witnesses. And slowly we got to a 8 in favor of not guilty and one who just couldn’t decide. That’s exactly when some of us, repeated why we should find the defendant not guilty.

The one hold out in the jury, was a young school teacher, who said she loved teaching, and just wanted to return to her kids. The last thing in the world she wanted to do was to go against the rest of us. She blurted out, “Well if that’s the way you all feel, I can go along with it.” At which point, which I will never forget, a Jamaican man spoke, and said to her, “You have to vote according to your conscious, because if you don’t, you will regret it the rest of your life.” And he was so right. How could this teacher, so focused on “her kids” go back to the classroom, knowing she caved in to the rest of us?

This Jamaican fellow was saying, in essence, a hung jury is fine. And I immediately spoke, saying we were in no hurry. Others chimed in with the same message. We were bound to make our decision based on what the judge instructed us to do. With that in mind, our conscience would be clear.

In the criminal case, we found the defendant guilty on two counts, and not guilty on one count. To this day, I believe we did the right thing, based on the evidence and the law as explained to us by the judge.

In every courtroom in the country, the same oaths are given, and jurors understand the seriousness of their obligation. They can’t discuss the case with anyone. They can’t listen to the news. There most difficult task one day, might have been, teaching school, or getting their car fixed. Now, they have to be in judgement of a total stranger.

I believe Donald Trump received a fair trial. Judge Juan Merchan is a very experienced and respected judge. He read the instructions a second time to the jury, as they requested. It takes a lot to convince 12 members of a jury that he is guilty. Trump has the right to appeal the verdict and this will take months. He can ask for an expediated appeal, if he is confident the verdict can be overturned. I don’t think he will do that. Many experts feel he has very little to base an appeal. He will instead use this verdict to cast himself as the victim of a partisan judicial system.

Stay tuned,

Dave