LawAndOrder

Crime and Punishment and Military Tribunals.

2012-01-25T09:53:00.000-08:00

Staff Sgt. Frank G. Wuterich, 31, a U. S. Marine Corps squad leader in Iraq was charged with war crimes, tried by a military court-martial, found guilty and sentenced to a maximum of 90 days in jail and a reduction in pay and rank.

He will not serve a day in jail. Because of a plea bargain with prosecutors he will avoid brig time all together. The military judge was obligated to abide by the plea bargain between prosecutors and the defense.

The bottom line is that the sentence amounts to a cut in pay and a reduction in rank to private.

As part of his guilty plea, Sgt. Wuterich accepted responsibility for giving negligent verbal instructions to the Marines under his command. He reportedly told them to "shoot first and ask questions later," which resulted in the deaths of innocent civilians.

In a pre-sentencing statement, Sgt. Wuterich said when he gave that order, "the intent wasn't that they should shoot civilians. It was that they would not hesitate in the face of the enemy."

He was accused of being the ringleader in a series of November 19, 2005, shootings and grenade attacks that left two dozen civilians dead in Haditha, a city west of Baghdad.

The killings were portrayed by Iraqi witnesses and military prosecutors as a massacre of unarmed civilians -- men, women and children -- carried out by Marines in anger after a member of their unit was killed by a roadside bomb.

Defense lawyers argued the deaths resulted from a fast-moving combat situation and that the Marines believed they were under enemy fire.

Did the punishment fit the crime?

LT. William Calley was charged on September 5, 1969, with six specifications of premeditated murder for the deaths of 104 Vietnamese civilians near the village of My Lai. As many as 500 villagers, mostly women, children, infants and the elderly, had been systematically killed by American soldiers during a bloody rampage on March 16, 1968. Had he been convicted, Calley could have faced the death penalty.

It was the military prosecution's contention that Calley, in defiance of the rules of engagement, ordered his men to deliberately murder unarmed Vietnamese civilians despite the fact that his men were not under enemy fire at all.

Calley's original defense that the death of the villagers was the result of an accidental helicopter or aerial airstrike was quashed by the few prosecution witnesses. In his new defense, Calley claimed he was following the orders of his immediate superior, Captain Ernest Medina. Twenty-one other members of Charlie Company also testified on Calley's defense corroborating the orders. But Medina publicly denied giving such an order. Medina was acquitted of all charges relating to the incident at a separate trial in August 1971.

Calley was convicted on March 29, 1971, of the premeditated murder of 22 Vietnamese civilians. On March 31, 1971, Calley was sentenced to life imprisonment and hard labor at Fort Leavenworth, Kansas. Of the 26 officers and soldiers initially charged for their part in the My Lai Massacre or the subsequent cover-up, only Calley was convicted.

On April 1, 1971, only a day after Calley was sentenced, U.S. President Richard Nixon ordered him transferred from Leavenworth prison to house arrest at Fort Benning, Georgia. He served only three and a half years of house arrest.

In 1974, President Nixon tacitly issued Calley a limited Presidential Pardon. Consequently, his general court-martial conviction and dismissal from the U.S. Army were upheld, however, the prison sentence and subsequent parole obligations were commuted to time served, leaving Calley a free man.

Did the punishment fit the crime?

On June 26, 2006 Cadet Webster Smith pleaded not guilty in the first court-martial of a cadet in Coast Guard Academy history. The charges ranged from rape, sodomy, and extortion to assault of four female cadets.

With no physical evidence in the case, defense attorneys had hoped to persuade jurors that the testimony of the women was unreliable. There was no DNA evidence, no forensic evidence, no rape kit and no crime scene photos. It was a classic case of “he-said, she-said”. It was one cadet’s word against another.

On June 28, 2006 after about eight hours of deliberation, the panel found Cadet Webster Smith guilty of indecent assault, extortion in exchange for sexual favors and sodomy, which in military parlance includes oral sex. All those charges involved only one of the four female accusers.

He was acquitted of several charges that stemmed from alleged sexual encounters with the other three female cadets. The defense had argued that the sex was consensual and that the women had colluded against Webster Smith. They were all scorned lovers of one sort or another.

Before any charges had been filed against him, Cadet Smith had spent about six months at hard labor and pre-trial confinement. He was sentenced to an additional six months in jail at a Navy brig, and dismissal from the Coast Guard Academy. He served five months in jail and was released early because of good behavior as a prisoner.

Webster Smith appealed his conviction all the way to the Supreme Court. The U.S. Coast Guard Court of Criminal Appeals held oral argument on January 16, 2008 in Arlington, Virginia; but the decision of the Court of Appeals for the Armed Forces (CAAF) became the final decision in the case because the U. S.Supreme Court, the nation’s court of last resort, denied the appeal without comment.

Did the punishment fit the crime?

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

Is Bradley Manning A Hero or A Criminal?

2012-01-18T13:46:00.001-08:00

Was it journalism or espionage?

In publishing the cables passed on by US soldier, Bradley Manning, was WikiLeaks engaging in journalism or espionage? Can he be convicted under the Espionage Act?

Or is this a case of "Shoot the messenger"?

In setting up WikiLeaks, Julian Assange wanted to bring to light secret agreements between countries. That he succeeded is clear from the number of companies and governments who have tried to shut him down, says

Philippe Rivière

If the freedom of speech is taken away then dumb and silent we may be led, like sheep to the slaughter.
– George Washington

In order to get to Julian Assange, it appears that the US Justice Department is trying to "flip" Bradley Manning and make his a state's witness against Julian Assange. If Assange is forced to return to Sweden to answer for certain sex charges, he could be snatched off the street and whisked to the USA to stand trial for espionage. That is if he ever gets to trial. Under the new authority granted in the National Defense Authorization Act the military has to detain indefinitely, Assange could disappear into the gulag never to be hear from again.

On 21 January 2010, in an important speech that would not have shamed the founding father of the United States, Hillary Clinton gave her views on the freedom of the internet. She criticised countries that “have erected electronic barriers that prevent their people from accessing portions of the world’s networks [and] expunged words, names, and phrases from search engine results”, and took up President Obama’s credo: “The more freely information flows, the stronger societies become.” In the name of that “faith” in freedom of expression and information networks that “[help] people discover new facts and [make] governments more accountable”, the administration launched a programme to support “the development of new tools that enable citizens to exercise their rights of free expression by circumventing politically motivated censorship” and warned against governments that, like “the dictatorships of the past... are targeting independent thinkers who use these tools”.

Stirring stuff. But rather like someone whose mobile is stolen in the street and then wants to bring back hanging, Clinton found herself the victim of piracy and on 30 November 2010 announced her intention to take “aggressive steps” in order to prosecute Julian Assange’s website, WikiLeaks. His alleged crime was that in revealing, among other things, that Clinton had asked her diplomats at the UN to spy on UN staff and collect as much biometric data and as many passwords and credit card numbers as possible, WikiLeaks was putting the “international community” in danger.

Outrage soon took hold among commentators on all sides, who flocked to the television studios to demand they “illegally shoot the son of a bitch” (journalist Bob Beckel on Fox News), charge him with “terrorism” (Peter King, House Homeland Security Committee), or consider him an “enemy combatant”, like the prisoners in Guantanamo (Newt Gingrich on Fox News). There was more than a whiff of McCarthyism according to one peace activist – a lynch mob fever of the sort that grips the US periodically.

In setting up WikiLeaks, Julian Assange intended to bring to light real “plots” and secret agreements between powers, which were carefully hidden from the public. The proof of his success came with the number of companies and governments who tried to shut his website down. In the days following the publication of the diplomatic memos, China blocked access to WikiLeaks. The US government recommended students not talk about the site on their blogs, and the US Air Force forbade looking at The New York Times, Der Spiegel and The Guardian websites, which had republished the information.

The three main online banking services, Visa, Mastercard and PayPal – which still allow you to make donations to the Ku Klux Klan – refused to handle payments to his organisation. They thereby revealed themselves to be “instruments of US foreign policy”, according to the WikiLeaks frontman. PostFinance, a subsidiary of the Swiss post office, also closed the Australian hacker’s account. Tableau Software, a data visualisation software company, censored not the data itself but a simple summary of the “leaks” on the unconvincing grounds that WikiLeaks didn’t have “the right to make [the data] available”. Amazon, as a site host that was protected from legal liability for content which was not its own, closed WikiLeaks’ account on its own initiative. When WikiLeaks then hired servers from OVH, a French hosting company based in Roubaix, France’s minister for the digital economy, Eric Besson – entrusted a few months earlier with the defence of the national identity of the land of Voltaire – asked the CGIET technology agency to tell him “as quickly as possible how to end the hosting of this site in France”. The judge in chambers to whom OVH referred the case rejected it on the grounds that there had not been a full adversarial hearing.

EveryDNS, a domain name system management service whose function is to enable users to find sites on the net, simply dropped WikiLeaks.

org from its entries. All the weaknesses of the net (its centralisation, its dependence on the US) and all the methods of coercion that web libertarians have been warning against for years (sometimes crying wolf) came into play. The demonisation of WikiLeaks’ spokesman went a stage further with an accusation of sexual misconduct and rape, charges that Assange rejects as “politically motivated”. A bizarre chase then ensued in order to get the Australian – by now in the south of England – to testify. If the UK extradited him to Sweden over the sex charges, would Sweden send him on to the US over the publication of State Department documents? The diplomatic and legal soap opera became frontpage news, catapulting WikiLeaks to the top of the list of the world’s best-known websites and Assange onto Time magazine’s list of personalities of the year, just behind Mark Zuckerberg, the creator of Facebook (see Facebook: the magic mirror).

Now that the powers-that-be had identified the WikiLeaks organisation as simply one man, they just had to convince us that he was not worthy of exercising his freedoms. Which leads to the crucial question: in publishing the cables passed on by a US soldier (probably the analyst Bradley Manning, who has been locked up for 23 hours a day since May 2010 at Quantico base in Virginia, and who faces a 52-year prison sentence if found guilty), was WikiLeaks engaging in journalism or espionage? “To convict [him] under the espionage Act, a trial must prove bad faith on the part of the accused. With WikiLeaks, that’s easy,” claimed an article in The Wall Street Journal on 9 December by Gabriel Schoenfeldt, the author of a book on secrets, national security and journalism. The great care with which the State Department representative Philip J Crowley asserted that WikiLeaks “isn’t a media organisation” then prepared the legal ground for bringing him to book. For if WikiLeaks is just a receiver of stolen goods, a spy, indeed a terrorist organisation, its condemnation would not be a violation of the First Amendment, which grants freedom of expression under the US constitution. “Assange obviously has a particular political objective behind his activities,” Crowley added, “and I think that, among other things, disqualifies him as being considered a journalist.”This strange concept of apolitical journalism was tested in the past in the Pentagon Papers trial. In 1971, the military analyst Daniel Ellsberg revealed to The New York Times and 17 other papers 7,000 pages of a secret study that he had photocopied and smuggled out of the Pentagon, which showed that “the Johnson Administration had systematically lied, not only to the public but also to Congress, about a subject of transcendent national interest and significance” – the Vietnam war. The government’s attempts to prevent publication went all the way to the Supreme Court, which in the end found in favour of freedom of the press.

Since then the lies have resumed. False premises were the basis for the US invasion of Iraq. According to The Washington Post, the number of documents classified as secret in the US has rocketed since 1996 (5.6m), reaching 54.6m by 2009.

(From The Diplomatic World by Philip Rivers)

Journalist Sues Obama in New York Federal Court to Stop Indefinite Detention of American Citizens

2012-01-17T10:43:00.000-08:00

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.

Cadet Used Honor Code To Obtain Sexual Favors.

2012-01-15T19:38:00.001-08:00

Cadet Robert M. Evenson Jr. is alleged to have forcibly raped a female cadet in the spring of 2010. He's also charged with breaking cadet regulations by having an ongoing relationship with a female freshman. He also is suspected of abusing his power position as a "cadet non-commissioned officer for honor cases" to extract sexual favors from a female fellow cadet. This is serious. He was charged with enforcing the Honor Code. He may have used it to supply gris for his mill. As one of the cadets entrusted with enforcing the Academy's Honor Code, he would have been in a very coveted position. He was expected to punish those who lie, cheat, steal or tolerate others who do. Those who violate the Honor Code face a maximum punishment of expulsion from the Academy. Allegations of corruption in the Honor Code enforcement system will likely send shock-waves through the Cadet Corps and the Academy alumni. The Honor Code is the very touchstone of the Academy's culture.

Who will watch the watchers? This exploitation of a power position was inevitable. It is as impossible to avoid detection indefinitely as it is to plans your own surprise birthday. This is probably not the first time this cadet has done this. It appears that he had momentum; that is, forward motion fueled by a series of wins.

Just what is the Honor Code. each of our military academies has an Honor Code or an Honor Concept. How do they differ? Read all about it in my book CONDUCT UNBECOMING an Officer and Lady. Read it for free in Kindle format at

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

The Coast Guard Academy Cadet Handbook (2010) tells the new cadet recruit that when you take the oath of office as a Cadet in the United States Coast Guard you begin your development as a commissioned officer in the Armed Forces of the United States. You will be expected to protect and defend the Constitution of the United States and to selflessly serve the American people.

In the Honor Concept there exists a higher standard of conduct that can neither be delineated by laws nor defined by regulations. It is the concept of Honor. Because Coast Guard cadets are called to a life of public service, and desire to attain that special trust and confidence which is placed in our nation’s commissioned officers, their actions must be straightforward and always above reproach. As future law enforcement officers, each cadet’s word and signature must be regarded as verification of the truth. The Coast Guard Academy’s Honor Concept is exemplified by a person who will neither lie, cheat, steal, nor attempt to deceive. It is epitomized by an individual who places loyalty to duty above loyalty to personal friendship or to selfish desire. While the Coast Guard Academy’s Honor Concept differs from a code, in that failure to report an honor offense is not itself an honor violation, cadets are required to report all activity that does not incriminate themselves. Moreover, the condoning of an honor violation is a Class I offense under the Cadet Regulations. Dis-enrollment is a very possible outcome. The Corps of Cadets are stewards of their Honor Concept.

At the center of their new world is adherence to a Concept or Cadet Honor Code to which they swear: “A cadet will not lie, cheat, or steal, nor tolerate those who do.” Their whole new world is shaped around these principles. This initially shapeless reality begins to form into principles of rigid honesty, loyalty to their fellow cadets, and respect for their classmates and all with whom they associate.

What is conduct unbecoming an officer and a lady? Does it violate the Honor Concept? Does conduct that violates the UCMJ constitute a higher standard than the Honor Concept? Times are changing so rapidly, one wonders if cadets and officers of today can be held to the same standards of conduct that were intended by the drafters of the UCMJ and the MCM promulgated in 1951? Not everyone can be expected to meet ideal moral standards, but how far can the standards of behavior of cadets and officers fall below contemporary community standards without seriously compromising their standing as officers and ladies? Have the changes in ethics and values of American society been reflected in the military?

Both the United States Military Academy and the United States Air Force Academy have adopted a Cadet Honor Code as a formalized statement of the minimum standard of ethics expected of cadets. Other military schools have similar codes with their own methods of administration. The United States Naval Academy, like the Coast Guard Academy, has a related standard, known as the Honor Concept.

The Cadet Honor Code at the Air Force Academy, like that at West Point, is the cornerstone of a cadet's professional training and development — the minimum standard of ethical conduct that cadets expect of themselves and their fellow cadets. Air Force's honor code was developed and adopted by the Class of 1959, the first class to graduate from the Academy, and has been handed down to every subsequent class. The code adopted was based largely on West Point's Honor Code, but was modified slightly to its current wording:

We will not lie, steal, or cheat, nor tolerate among us anyone who does.

In 1984, the Cadet Wing voted to add an "Honor Oath," which was to be taken by all cadets. The oath is administered to fourth class cadets (freshmen) when they are formally accepted into the Wing at the conclusion of Basic Cadet Training. The oath remains unchanged since its adoption in 1984, and consists of a statement of the code, followed by a resolution to live honorably:

We will not lie, steal or cheat, nor tolerate among us anyone who does.

Furthermore, I resolve to do my duty and to live honorably, so help me God.

Cadets are considered the "guardians and stewards" of the Code. Cadet honor representatives throughout the Wing oversee the honor system by conducting education classes and investigating possible honor incidents. Cadets throughout the Wing are expected to sit on Honor Boards as juries that determine whether their fellow cadets violated the code. Cadets also recommend sanctions for violations. Although the presumed sanction for a violation is di-senrollment, mitigating factors may result in the violator being placed in a probationary status for some period of time. This "honor probation" is usually only reserved for cadets in their first two years at the Academy. (Cadet Honor Code, from Wikipedia, the free encyclopedia)

WikiLeaks Leaker Receives Friday The 13th Surprise. Court-martial Recommendation.

2012-01-13T20:50:00.000-08:00

An Army Article 32 Investigating Officer has recommended that the charges against Bradley Manning be referred to a general court-martial. An article 32 Investigation is the equivalent of a civilian grand jury. In the military it is convened under the authority of Article 32 of the Uniform Code of Military Justice (UCMJ).

So, it is official. A military tribunal will be convened in this case. This is the Friday the 13th Double Whammy for Bradley Manning. These military tribunals will probably become more common under the Imperial Presidency of Barack Obama now that he has the legal authority to detain indefinitely without trial anyone considered a terrorist.

It would be wise for most American to become acquainted with the UCMJ and its procedures. This is the same type of forum that was used to convict Cadet Webster Smith at the U. S. Coast Guard Academy for alleged sexual assault. And it is the same type of forum that will be used to try the cadets at the U. S. Air Force Academy who were charged earlier this week with alleged sex crimes.

A book about the Webster Smith case describes the UCMJ procedure from pre-trial investigation all the way to the U. S. Supreme Court. It is entitled "CONDUCT UNBECOMING an Officer and Lady". It is available in Kindle format from Amazon.com and can be read for free on a Kindle reader.

(http://www.amazon.com/CONDUCT-UNBECOMING-Officer-Lady-ebook/dp/B006VPAADK/ref=pd_rhf_se_p_t_2)

The charges against Private Manning include aiding the enemy, wrongfully causing intelligence to be published on the Internet knowing it is accessible to the enemy, theft of public property or records, transmitting defense information and computer fraud.

If convicted, Manning, an army private before the WikiLeaks furor erupted, could be sentenced to life in prison. Webster Smith was sentenced to 6 months in prison, a bad conduct discharge, and separation form the armed forces. He was also required to register as a sex offender in the State of Texas.

The recommendation followed a seven-day Article 32 Investigation to determine if there was sufficient evidence to try the 24-year-old private from Oklahoma. The IO found that there was probable cause to proceed to a trial.

Manning is accused of giving WikiLeaks a massive trove of US military reports from Iraq and Afghanistan, 260,000 classified State Department cables, Guantanamo detainee assessments and videos of US air strikes.

Trained on various intelligence systems, Manning served in Iraq from November 2009 until his arrest in May 2010.

The anti-secrecy website began releasing the military documents in July 2010. It dumped the entire archive of diplomatic documents in September 2011, causing huge embarrassment to U.S. Government.

It is alleged that contact information for WikiLeaks founder, Julian Assange, military reports, cables and other classified material had been found on computers and storage devices used by Manning.

Our commander-in-chief, President Barack Obama, has publicly declared Manning guilty before he has had his day in court. One would have expected a former Constitutional law professor to show more respect for the presumption of innocence that an accused is afforded under the U. S. Constitution. This could sure taint any potential jury pool.

In his closing argument at the Article 32 hearing, Manning's civilian defense attorney David Coombs said the government "overcharged in this case". He begged the IO to reduce the charges to just three counts that would carry a total of 30 years in prison.

The defense portrayed Manning as suffering during his deployment near Baghdad from emotional problems stemming from his homosexuality, which his superiors did nothing to remedy.

Cadet Webster Smith was placed in pre-trial confinement and forced to work at hard labor for 6 months before he was taken to a trial. Bradley Manning was jailed for more than a year and a half. He complained of being placed in solitary confinement, of bullying by guards, and of being subjected to an ultra restrictive regime at the US military prison at the Marine Corps Base Quantico, Virginia just outside of Washington,DC.

Sexual Assault Returns To Military Academies. Boys Will Be Boys. Girls Just Want To Have Fun.

2012-01-11T08:38:00.001-08:00

http://www.amazon.com/CONDUCT-UNBECOMING-Officer-Lady-ebook/dp/B006VPAADK/ref=pd_rhf_se_p_t_2

To start the New Year with a bang, commanders at the Air Force Academy in Colorado Springs on 5 January 2012 charged three Air Force Academy cadets with sexual assault in cases that occurred over the past 15 months.

The cases involve acts allegedly committed at the Academy, and involve civilian women as well as female cadets.

In November 2011, Cadet Stephan H. Claxton is alleged to have unzipped the fly of a female cadet while she was "substantially incapacitated" -- a phrase the military has used in the past to describe intoxication.

Cadet Claxton faces assault and attempted rape charges, including an allegation that he forcibly kissed one cadet and assaulted another. He is also charged concerning an incident in March 2011, where he is accused of forcing a fellow cadet to touch his genitals and indulge in underage drinking.

Cadet Kyle A. Cressy, a graduating senior and a member of the soccer team, is charged having sex with a woman at the academy who was "substantially incapacitated." It's unclear from the charge sheet whether the alleged victim was a civilian or a female cadet.

Cadet Robert M. Evenson Jr. is alleged to have forcibly raped a female cadet in the spring of 2010. He's also charged with breaking cadet regulations by having an ongoing relationship with a female freshman. He also is suspected of abusing his power position as a "cadet non-commissioned officer for honor cases" to extract sexual favors from a female fellow cadet. This is serious. He was charged with enforcing the Honor Code. he may have used it to supply gris for his mill. As one of the cadets entrusted with enforcing the Academy's Honor Code, he would have been in a very coveted position. He was expected to punish those who lie, cheat, steal or tolerate others who do. Those who violate the Honor Code face a maximum punishment of expulsion from the Academy. Allegations of corruption in the Honor Code enforcement system will likely send shockwaves through the Cadet Corps and the Academy alumni. The Honor Code is the very touchstone of the Academy's culture.

These charges come to light a week after the Pentagon reported a spike in the number of sexual assaults at the air Force Academy. There were 33 reported incidents in the 2010-2011 academic year. This is a four-fold increase in a two year span.

There are about 4,000 cadets at the Air Force Academy. A senior academy spokesman said these charges don't appear to mark a return of the level of incidents of sexual assault of 2003. In 2003 the Academy and the nation were rocked when dozens of female cadets reported incidents of alleged sexual assaults. Many of those cases were mishandled or ignored.

Several senior officers at the Academy were fired in the wake of the 2003 scandal. This resulted in congressional scrutiny to the issue of sexual assaults at all the nation's military academies. There were courts-martial at the Coast Guard Academy in New London, Connecticut and the Naval Academy at Annapolis, Maryland. Three were major reforms at those institutions.

The Coast Guard Academy court-martial of Cadet Webster Smith marked the first time in history that a cadet at the Coast Guard Academy was given court-martial. Some Coast Guard Academy graduates accused the Coast Guard of racial discrimination because the accused, Cadet Webster Smith, was African American and all of the accusers were white females. One of them was his girl friend who had become pregnant, and had an abortion more than six months before the Coast Guard decided to charge Cadet Smith with rape.

In the meantime it was learned that about 11 other cases of confessed rape had been resolved without resort to a court-martial. All of the other cadets were allowed to resign quietly and slip into darkness. All the other cadets were white. This is part of the reason that there were claims of bias and inappropriate command influence in the prosecution of Webster Smith.

The conviction was appealed all the way to the United States Supreme Court. It is interesting to note that there were several 'Friend of the Court' or 'amicus briefs' filed with the Supreme Court by senior military lawyers from other branches of the armed forces in favor of the reversal of the Webster Smith conviction. It set a very bad precedent and there were irregularities in the prosecution and the appellate review of the conviction. The case was thoroughly critiqued in a book available on Amazon.com. (See http://www.amazon.com/CONDUCT-UNBECOMING-Officer-Lady-ebook/dp/B006VPAADK/ref=pd_rhf_se_p_t_2)

The Pentagon in a December 2011 report to Congress praised the Air Force Academy's efforts to curb sexual assault in the ranks and gave the school high marks for its programs to encourage sexual assault reporting.

"[The academy] demonstrated commendable practices that should be considered for replication by other military service academies," the Defense Department wrote in the report. The Coast Guard Academy had already implemented a new procedure for reporting and investigating sexual assaults in the wake of the Webster Smith case.

If any of these cadets get convicted, it would mark a reversal of fortunes for air Force prosecutors. Since the 2003 scandal, the academy has prosecuted a string of rape cases against cadets. But none of those cases has resulted in a conviction. Unlike the Coast Guard Academy, where one prosecution in 2006 resulted in one conviction and six months in jail for a graduating senior. (http://www.amazon.com/CONDUCT-UNBECOMING-Officer-Lady-ebook/dp/B006VPAADK/ref=pd_rhf_se_p_t_2)

Recent rape trials at the Air Force Academy have almost always centered on the issue of 'consent'. The defendant always used as a defense that the alleged victim gave her consent. He said she asked for sex. The cases were also marked by a lack of forensic evidence that could help sort out the conflicting claims. One can never be sure what a jury will decide in a case of 'he-said, she-said'.

Gaddafi Is Now A Martyr.

2011-10-20T20:06:00.000-07:00

Gaddafi died at the hands of an angry mob aided by a French air strike. It was a shameful spectacle. There is no law and no order in Libya. Shame on the NTC. It was a lynch mob. Gaddafi was captured alive. He deserved a trial. Such barbarism is ample evidence of how far man has progressed in his attempt to civilize himself. God help us.

Gaddafi was trying to flee the city in a convoy of cars when they came under attack from NATO jets. The French claimed responsibility for the airstrike. Charred remains of 15 pickup trucks lay burned out on a roadside where Gaddafi's convoy had attempted to punch through NTC lines. Inside the ruined vehicles sat the charred skeletons.

Unlike Saddam Hussein of Iraq, who was hanged, Gaddafi died on his feet, standing up and fighting back.

"While he was being taken away, they beat him and then they killed him," a senior source in the NTC told Reuters news agency. "He might have been resisting."

Officials said Gaddafi's son Mo'tassim, also seen bleeding but alive, had also died. Another son, heir-apparent Saif al-Islam, was variously reported to be surrounded, captured or killed as conflicting accounts of the day's events crackled around networks of NTC fighters rejoicing in Sirte.

French President Nicolas Sarkozy, spearheaded the Franco-British move in NATO to back the revolt against Gaddafi.

Shortly before dawn prayers on Thursday, Gaddafi, surrounded by a few dozen loyal bodyguards and accompanied by the head of his now non-existent army Abu Bakr Younis Jabr, broke out of the two-month siege of Sirte and made a break for the west.

But they did not get far.

NATO said its warplanes fired on a convoy near Sirte about 8:30 a.m. (2:30 a.m. ET), striking two military vehicles in the group, but could not confirm that Gaddafi had been a passenger. France later said its jets had halted the convoy, which was comprised of some 80 vehicles.

By averting a possible dispute in Libya and internationally about where to try him, and denying him a final platform for his trademark lengthy speeches, the summary killing on a desert road is very troubling and unworthy of great powers.

"Gaddafi is now a martyr and thus can become the rallying point for irredentist or tribal violence -- perhaps not in the immediate future but in the medium-to-long term," said George Joffe, a north Africa expert at Cambridge University.

"The fact that NATO can be blamed for his death is worrying, in terms of regional support, and may undermine the legitimacy of the National Transitional Council."

At the end his so-called friends and allies of convenience deserted him, like Jesus' disciples and friends before his crucifixion.

The death of Gaddafi is a setback to campaigners seeking the full truth about the 1988 bombing over Lockerbie in Scotland of Pan Am flight 103 which claimed 270 lives, mainly Americans, and for which one of Gaddafi's agents was convicted.

Gaddafi loved his green stick.

In the end all of his friends deserted him. US President Barack Obama (R) and Libyan Leader Moamer Kadhafi shake hands during the Group of Eight (G8) summit in L'Aquila, central Italy, on July 9, 2009.

Group of Eight leaders grappled at a summit in Italy with reining in unprecedented government support for their economies as divergences emerged over whether their economies were ready. AFP PHOTO / STR (Photo credit should read STR/AFP/Getty Images) AFP/Getty Images

Gaddafi at the G8-SUMMIT was with them but not of them.

CONDUCT UNBECOMING an Officer and Lady

2011-10-04T15:22:00.000-07:00

CONDUCT UNBECOMING an Officer and Lady
If the USA is one big book club then the American Corner and the Steverson Collection Book Club must have been hoping that this would be the week that everyone was talking about "CONDUCT UNBECOMING an Officer and Lady", Judge London Steverson's most recent revelation concerning the trial and conviction of the first Coast Guard Academy cadet in the history of this small military academy in New London, CT..(www.judgelondonsteverson.com )

This case really made news and generated a lot of changes in the way sexual assaults are reported and investigated in the military academies. Read in full, this book is a new American Tragedy. It has the virtues and limitations of Theodore Dreiser's original American Tragedy: contemporary, still unfolding history, shadows of power, teenage binge drinking, inter-racial sexual encounters of the worst kind, and immorality at the highest levels of the military. That means an all knowing, seemingly eyewitness, mind-reading author; an unbelievable dialogue of incrimination and recrimination, back and forth he-said, she-said. One is left with the unmistakable feeling that someone must be telling the truth, but who?

If the male cadet-accused is, then the female cadet-accuser is a woman of easy virtue times two. Also, she would have to be a pathological liar.

If the female cadet-accuser is telling the truth, then the accused male cadet is a Jim Dandy, smooth, athletic, lady's man, who finally gets hoisted on his own petard.

This book is non-fiction, and it is based on a true story. It is an analysis of the latest bomb to come out of the annals of inter-class, inter-racial, misconduct at the Coast Guard Academy.

Analysis, background, and exposition necessarily take a back seat to exaggeration. There is no need to inflate the facts; this truth is more fascinating than fiction.

After showing that the accused is not the sexual predator that he was alleged to have been by senior officials, the book demonstrates how the justice system was used to pervert justice in a case of few complicated facts. This case actually went all the way to the United States Supreme Court.

In addition to exposing the trial for what it was; that is to say, a kangaroo court; the author actually paints a detailed and accurate description of the real Coast Guard Academy sexual predator.

Steverson Collection Book Club

2011-10-02T17:07:00.000-07:00

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

The American Corner in Veszprém provides up-to-date, accurate, and tailor-made information on issues related to the U.S. Citizens of the region are welcome to visit the Corner to gain information about the the American educational system, arts, sciences, and economy. In addition to that, our aim is to create links and foster communication between Hungary and the U.S. The Corner focuses mainly on educational, cultural and business issues connecting the two nations. Besides providing basic services, we organize conferences, meetings, exhibitions, and performances.

Detailed Info Website:http://www.americancorner.hu
Company Overview:The American Corners (AC) program is a United States Department of State-sponsored initiative inaugurated worldwide more than 10 years ago.
American Corner Debrecen is a cultural and information center supported by the Embassy of the United States, the City Council of Debrecen and the University of Debrecen.
Mission:The basic function of the American Corner is to make information about the United States available by providing access to current and reliable information about the U. S. via book, video, and DVD collections, the Internet, and through a wide range of local programs.
We hope to bring the American culture closer to the Hungarian people and therefore foster international cooperation.
Products:Knowledge, cheerfulness, friendship... ALL FOR FREE :)

After the Opening Ceremony of the Steverson Collection on 23 April, 2009 the
American Corner Veszprem was excited to announce the start of the
Steverson Collection Book Club. The Club's aim is to give the reading public a chance to get
acquainted with the vast collection of books in the generous donation from Judge London
Steverson and his family. This Book Club is be run by booklovers, for booklovers.
The members are at the heart of all the club does.

Variety is at the heart of our Club. The Steverson Collection contains thousands of used and rare English language books on a variety of subjects of interest; such as, History, Humor, Satire, Myths & Legends, Philosophy, Poetry, Shakespeare, Religion, Reference,
Travel & Leisure, Exploration (The Silk Road, The Spice Route, The
Northwest Passage, Antarctica, The North Pole, and more..)

Steverson Collection Book Club (www.ekmk.hu) meets every Tuesday in the American Corner.
Do you like reading? Join the unique Steverson Collection Book Club. Meet new friends. Memberhip is free, the language English. win a valuable English language book every month. Date and time: 16:30-17:30, September 27, 2011. Venue: American Corner, Eötvös Károly County Library and Cultural Institute, Veszprém, Komakút tér 3.

Join The Steverson Collection Book Club and meet new friends from 16:30-17:30 every Tuesday at the American Corner. Do you like reading? Are you interested in English language books? Memberhip is free, the language of the program is English. Date: August 30, 2011. Venue: American Corner, Eötvös Károly County Library and Cultural Institute, Veszprém, Komakút tér 3.

(Hungarian)
(Részletek) Steverson gyűjtemény könyvklub (Steverson Collection Book Club)
Minden kedden 16:30-17:30-ig az Amerikai Kuckóban.

Szeretsz olvasni? Érdekelnek az angol nyelvű könyvek? Csatlakozz az
egyedülálló Steverson-gyűjtemény könyvklubjához, és ismerkedj meg új
könyvekkel és új barátokkal! A részvétel ingyenes, a program nyelve
angol.

Időpont: 2011. Augusztus 30. 16:30-17:30.
Helyszín: Amerikai Kuckó, Eötvös Károly Megyei

Wikipedia deleted page Re: London Steverson

2011-09-26T21:49:00.000-07:00

From Wikipedia, the free encyclopedia

London Eugene Livingston Steverson (born March 13, 1947) was one of the first two African Americans to graduate from the United States Coast Guard Academy in 1968. Later, as chief of the newly formed Minority Recruiting Section of the United States Coast Guard (USCG), he was charged with desegregating the Coast Guard Academy by recruiting minority candidates. He retired from the Coast Guard in 1988 and in 1990 was appointed to the bench as a Federal Administrative Law Judge with the Office of Hearings and Appeals, Social Security Administration.
Contents

1 Early life and education
2 USCG Assignments
3 USCG Minority Recruiting
4 Law
5 Awards
6 See also
7 References
8 External links

Early life and education

Steverson was born and raised in Millington, Tennessee, the oldest of three children of Jerome and Ruby Steverson. At the age of 5 he was enrolled in the E. A. Harrold elementary school in a segregated school system. He later attended the all black Woodstock High School in Memphis, Tennessee, graduating valedictorian.

A Presidential Executive Order issued by President Truman had desegregated the armed forces in 1948,[1] but the service academies were lagging in officer recruiting. President Kennedy specifically challenged the United States Coast Guard Academy to tender appointments to Black high school students. London Steverson was one of the Black student to be offered such an appointment, and when he accepted the opportunity to be part of the class of 1968, he became the second African American to enter the previously all-white military academy. On June 4, 1968 Steverson graduated from the Coast Guard Academy with a BS degree in Engineering and a commission as an ensign in the U.S. Coast Guard.

In 1974, while still a member of the Coast Guard, Steverson entered The National Law Center of The George Washington University and graduated in 1977 with a Juris Doctor of Laws Degree.
USCG Assignments

Steverson's first duty assignment out of the Academy was in Antarctic research logistical support. In July 1968 he reported aboard the Coast Guard Cutter (CGC) Glacier [2] (WAGB-4), an icebreaker operating under the control of the U.S. Navy, and served as a deck watch officer and head of the Marine Science Department. He traveled to Antarctica during two patrols from July 1968 to August 1969, supporting the research operations of the National Science Foundation's Antarctic Research Project in and around McMurdo Station. During the 1969 patrol the CGC Glacier responded to an international distress call from the Argentine icebreaker General SanMartin, which they freed.

He received another military assignment from 1970 to 1972 in Juneau, Alaska as a Search and Rescue Officer. Before being certified as an Operations Duty Officer, it was necessary to become thoroughly familiar with the geography and topography of the Alaskan remote sites. Along with his office mate, Ltjg Herbert Claiborne "Bertie" Pell, the son of Rhode Island Senator Claiborne Pell, Steverson was sent on a familiarization tour of Coast Guard, Navy and Air Force bases. The bases visited were Base Kodiak, Base Adak Island, and Attu Island, in the Aleutian Islands.[3]

Steverson was the Duty Officer on September 4, 1971 when an emergency call was received that an Alaskan Airlines Boeing 727 airline passenger plane was overdue at Juneau airport. This was a Saturday and the weather was foggy with drizzling rain. Visibility was less than one-quarter mile. The 727 was en route to Seattle, Washington from Anchorage, Alaska with a scheduled stop in Juneau. There were 109 people on board and there were no survivors. Steverson received the initial alert message and began the coordination of the search and rescue effort. In a matter of hours the wreckage from the plane, with no survivors, was located on the side of a mountain about five miles from the airport. For several weeks the body parts were collected and reassembled in a staging area in the National Guard Armory only a few blocks from the Search and Rescue Center where Steverson first received the distress broadcast.[4]. Later a full investigation with the National Transportation Safety Board determined that the cause of the accident was equipment failure.[5]

Another noteworthy item is Steverson's involvement as an Operations Officer during the seizure of two Russian fishing vessels, the Kolevan and the Lamut for violating an international agreement prohibiting foreign vessels from fishing in United States territorial waters. The initial attempts at seizing the Russian vessels almost precipitated an international incident when the Russian vessels refused to proceed to a U. S. port, and instead sailed toward the Kamchatka Peninsula. Russian MIG fighter planes were scrambled, as well as American fighter planes from Elmendorf Air Force Base before the Russian vessels changed course and steamed back to Anchorage, where a U.S. Attorney was waiting to prosecute the vessels for the violations of fishing treaties.

Because of his icebreaker experience, Steverson was later made the Seventeenth District's first Ice Operations Officer. With the increased activity at Point Barrow and on the North Slope of Alaska brought on by the discovery of the vast oil reserves, more Coast Guard icebreakers were making patrols North of the Bering Sea, where icebreaking is necessary.

The Coast Guard did not have a separate Judge Advocate General's Corp (JAG). Coast Guard lawyers were called "legal specialists". These law specialists were line officers and could rotate out of the regular legal billets. Frequently these tours of duty out of specialty were in law related areas. Steverson served one such four year tour of duty as the Chief Marine Investigating Officer for the Marine Inspection Office in Battery Park, New York from 1982 to 1986. This job was similar to that of a city prosecutor. With a staff of ten investigating officers, he would investigate marine disasters for negligence and causes of action. Any marine personnel found to have violated a marine safety law would be charged and tried before a Coast Guard administrative law judge at the World Trade Center. In the case of a major marine disaster with multiple loss of life, a formal Board of Inquiry would be convened under the direction of the National Transportation Safety Board (NTSB). These Inquiries often would result in promulgation of new marine safety regulations under Title 46 Code of Federal Regulations (CFR). One such incident was the Case of The Joan LaRie III, a charter fishing vessel that sank of the coast of New Jersey on October 24, 1982. [6][7][8]
USCG Minority Recruiting
Lt. Steverson with the 20 new Black cadets in the Class of 1978, sworn in July 1974 on the steps of Chase Hall.

In July 1972 Steverson was reassigned from Alaska to Washington, D.C. to become the Chief of the newly formed Minority Recruiting Section of the USCG, and was charged with working toward desegregating the nearly all-white USCG, starting with the United States Coast Guard Academy.

From 1876 until 1962 the Academy had not admitted any African-American cadets. One graduated in 1966, two graduated in 1968 (including Steverson) and one graduated in 1970. After that none were admitted until Steverson was placed in charge of the national recruiting effort. As the second minority cadet to enter and graduate from this institution, Steverson had obvious expertise in this endeavor.

He traveled the country looking for qualified minority high school students who could compete for admission. Since the Coast Guard Academy is the only one of the United States military academies that does not require a Congressional appointment, and admission is strictly on the basis of the Scholastic Aptitude Test with additional consideration of extra-curricular involvement, minority applicants stood a better chance of being admitted to the Coast Guard Academy than to Annapolis, West Point or the Air Force Academy.

His efforts were rewarded in 1973 when 28 Black cadets were sworn into the Class of 1977, and again in 1974 when 20 Black cadets were admitted as part of the Class of 1978. It was from these cadets that the Coast Guard's first African-American officers of flag rank were to come in the 1990s; officers such as Admiral Joseph Jones, Admiral Errol Brown and Admiral Manson K. Brown.

While Lieutenant Steverson was charged first and foremost with recruiting cadets for the Academy (because that is where the bulk of the career officers would come from), he was also requested to find minority college graduates who were willing receive direct commissions as lawyers and as aviators. These officers were already college graduates and had no need to attend the four year Academy, instead received a three month orientation at the Coast Guard Officer Training Center. He recruited several people from the Vanderbilt University Law School.

After serving two years in this position, he was replaced by the Academy's first graduate from Guam, Juan Tudela Salas.[9]
Law

He next worked as a Law Specialist in the 12th Coast Guard District Office, San Francisco, California and as an Assistant U. S. Attorney for the collection of Civil Penalties under the Federal Boating Safety Act from 1979 to 1982. An Assistant District Legal Officer, he was required to defend as well as prosecute military members who had been charged with violations of the Uniform Code of Military Justice. Occasionally he was asked to represent other officers in administrative actions involving sexual harassment and discrimination. One such case was the Case of Christine D. Balboni against the Department of Transportation and the United States Coast Guard (DOT Case No. 82-177). Ensign Balboni was one of the first female graduates of the Coast Guard Academy. She graduated in the Class of 1981 and was assigned to the Coast Guard Cutter RUSH, a high endurance law enforcement vessel stationed in Alameda, California. She filed a formal complaint of sexual harassment against three senior officers on board the RUSH. She alleged that false special fitness reports had been written concerning her and that the captain of the ship had requested her immediate transfer off the ship long before her normal rotation date. After no other lawyer would take her case, Commander Ronald Mathews, Chief of The 12th District Legal Office, assigned Lieutenant Commander Steverson to represent Ensign Balboni in a formal departmental administrative hearing before a federal administrative law judge. The charges made by Ensign Balboni were determined to be valid. The relief granted was to have the false special fitness reports removed from her service record and destroyed. She was promoted to the next higher rank. Her career was saved. No disciplinary action was taken against the offending officers.[10][11]

He became the Chief of the Investigating Division at the Marine Inspection Office New York City. In 1986 he was detailed to the National Narcotics Border Interdiction System under the Office of Vice President at the time, George H. W. Bush.

When he retired in June 1988 he became the first African-American Coast Guard Academy graduate to retire as a regular line office from the service, and held the rank of Lieutenant-Commander during his last 10 years of service.

He retired to Dumont, New Jersey and practiced law in New York, with a focus on family law and defending Coast Guardsmen accused of federal crimes. He is a member of the New York State, New York City, and Tennessee Bar Associations.

In July 1990 he was appointed a federal administrative law judge by President George W. Bush. He was assigned to the Ninth Region of the Social Security Office of Hearings and Appeals in California. [12]

In April 2009 he retired from his United States Administrative Law Judge Appointment. He devoted himself to philanthropic endeavors. The Steverson Collection at www.ekmk.hu and the Steverson Collection Book Club were his major attempts to improve literacy and to spread American culture in the non-English speaking countries of Europe.
Awards

The Cultural Diplomacy Award was given to Judge Steverson in April 2009 by the United States Ambassador to Hungary for helping create "a foundation of trust" with the people, which can be built on to reach political, economic, and military agreements; and that combats the notion that Americans are shallow, violent, and godless. He helped to affirm that Americans have such values as family, faith, and the desire for education in common with others; he helped to create a relationship with the people, which will endure beyond changes in government; he helped to reach influential members of the society, who could not be reached through traditional diplomatic functions; and, he donated a large collection of new, used, and rare English books to the American Corners of Hungary.

The State Department Cultural Diplomacy Award is designed to honor distinguished representatives of American culture whose efforts and artistry advance America's goals of mutual understanding and the deepening of friendship between the United States and others.

Since his appointment by President George H. W. Bush in 1990 as federal administrative judge to the Ninth Region of the Social Security Office of Hearings and Appeals, Judge Steverson and family have resided in Downey City, CA, where he was president of the Downey Sister City Association for seven years, and an International Peace Ambassador.
See also

Black Cadets at the Coast Guard Academy

References

^ Truman Library - Executive Order 9981
^ http://www.laesser.org/joomla/index.php?option=com_content&task=view&id=90&Itemid=38
^ Attu Homepage
^ DCA72AZ003
^ Aviation Disasters Crashes
^ http://www.uscg.mil/hq/g-m/moa/boards/joanlerie.pdf
^ http://www.webandwire.com/coast%20guard%20casualties.htm
^ Missing Body Is Found In Jersey Boat Sinking - New York Times
^ http://www.offisland.com/armedsalas.html Info about Juan Tudela Salas
^ Transitions - The Mason Spirit - George Mason University
^ Search Results - THOMAS (Library of Congress)
^ http://photos1.blogger.com/blogger/7862/2758/320/AljOmaha35630520.jpg

External links

Integration of the Armed Forces 1940-1965, chapter 20 Limited Response to Discrimination - includes info about President John F. Kennedy's personal involvement with the first attempts to desegregate the USCG Academy, which was a direct cause of London Steverson's admission into the Academy.
USCG history page - See of this page starting with caption for picture of the Lamut (about 2/3 the way down the page).
Photo of the judge in robes on the bench
http://photos1.blogger.com/blogger/7862/2758/1600/JudgePortraitDSC03584.jpg
http://photos1.blogger.com/blogger/7862/2758/320/AljOmaha35630520.jpg
http://home.comcast.net/~uscgacademy/london.html

Categories: 1947 births | George Washington University alumni | Living people | United States Coast Guard Academy alumni

Related links
Up to date as of November 16, 2009
[This page is marked authoritative because it has been included for 100% of the life of the Wikipedia article.] Photo of the judge in robes on the bench

[This page is marked authoritative because it has been included for 100% of the life of the Wikipedia article.] Integration of the Armed Forces 1940-1965, chapter 20 - CHAPTER 20: Limited Response to Discrimination

[This page is marked authoritative because it has been included for 100% of the life of the Wikipedia article.] Truman Library - Executive Order 9981

[This page is marked authoritative because it has been included for 100% of the life of the Wikipedia article.] Info about Juan Tudela Salas - Salas - offisland.com

[This page is marked authoritative because it has been included for 100% of the life of the Wikipedia article.] Attu Homepage

[This page is marked authoritative because it has been included for 100% of the life of the Wikipedia article.] DCA72AZ003

[This page is marked authoritative because it has been included for 100% of the life of the Wikipedia article.] Aviation Disaters Crashes

[This page is marked authoritative because it has been included for 100% of the life of the Wikipedia article.] Homeport: Investigations

[This page is marked authoritative because it has been included for 100% of the life of the Wikipedia article.] MISSING BODY IS FOUND IN JERSEY BOAT SINKING - New York Times

[This page is marked authoritative because it has been included for 100% of the life of the Wikipedia article.] Search Results - THOMAS (Library of Congress)

[This page is marked authoritative because it has been included for 100% of the life of the Wikipedia article.] Transitions - The Mason Spirit -- George Mason University

[This page is marked authoritative because it has been included for 100% of the life of the Wikipedia article.] Comcast

[This page is marked authoritative because it has been included for 100% of the life of the Wikipedia article.] Cite/Cite.php - Meta

[This page is marked authoritative because it has been included for 75% of the life of the Wikipedia article.] link title - Example Web Page

Related topics
Up to date as of August 19, 2010

United States Coast Guard
United States Naval Academy
United States Military Academy
United States Navy
Black Cadets at the Coast Guard Academy
United States Air Force Academy

High Paid Social Security Judges Cost Taxpayers $2 Billion A Year

2011-07-13T12:50:00.001-07:00

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

Social Security Administration Commissioner Michael Astrue said judges (Administrative Law Judges, ALJs) in his agency who award disability benefits more than 85% of the time cost taxpayers roughly $1 billion a year. (See http://online.wsj.com/article_email/SB10001424052702303812104576440514261188124-lMyQjAxMTAxMDEwMjExNDIyWj.html )That is not true. If he is referring to Social Security Disability Insured (SSDI) Benefits, the claimants have paid into a fund that insures them against disability. Those benefits do not come from the General Fund. They are not taxpayers' money. Also, ALJs do not award $1 Billion a year in Supplemental Security Income (SSI) benefits. SSI is welfare and does come from taxpayer's funds.

Conversely, ALJs who do not pay legitimate benefits to claimants who qualify for benefits are not saving the taxpayers any money. Commissioner Astrue also said judges who deny benefits in 80% or more of their cases end up saving taxpayers $200 million each year. That is not true either.

Though he said that he wasn't suggesting that was a practice he condoned, he is trying to have his cake and eat it too.

Commissioner Astrue's testimony has not changed much, if at all, since he appeared before Congress in May 2007 and April 2008. (His statements and testimony are recorded in detail in my book, socialNsecurity, beginning at page 443. Available at www.judgelondonsteverson.com) He is still blaming the judges, asking for more money, more judges, and more time to reduce the backlog. Since 2007 the number of judges has gone from 1200 to 1500 and the backlog continues to grow. And Mr. Astrue continues to make excuses.

Mr. Astrue wants to have it both ways. "I find it interesting that there is so much wringing of the hands about a judge who pays almost 100% of his cases, as if the agency didn't know about it, as if the agency wasn't complicit in it, as if the agency didn't encourage it," said Marilyn Zahm, a Social Security judge in Buffalo who is an executive vice president of the Association of Administrative Law Judges (AALJ), the judges' union.
Judge Zahm had a lot more to say in an interview in October 2009. (Read the entire interview starting at page 430 in my book, socialNsecurity, available at Amazon.com or www.judgelondonsteverson.com)

It is a bit surprising that Judge Zahm would be so out-spoken, considering the minimum amount of work she does and the astranomical amount of money she is paid. According to Social Security records Judge Zahm issued only 26 decisions for the 9 months between September 2010 and June 2011. At a salary of $167,000.00 per year, she earned $6,423.00 per decision. An average hearing lasts about 30 minutes; so, her hourly wage for that period was about $12,846.00. That is a nice salary for so little work.

However, Judge Zahm is only the Vice President of the AALJ. Perhaps, the President, Judge Randy Frye, sets a better example. According to Social Security records Judge Frye issued only 37 decisions for the 9 months between September 2010 and June 2011. At a salary of $167,000.00 per year, he earned $4,513.50 per decision. An average hearing lasts about 30 minutes; so, his hourly wage for that period was about $9,027.00. That is also a nice salary for so little work.

Judges Zahm and Frye are not unique. During the same period Judge Mark Anderson issued only 3 decisions; Judge JoAnn Andersen issued only 5 decisions; Judge William King held only 4 hearings and issued 1 decision. He was busy traveling between California and Hawaii to conduct the hearings.

These statistics came from an SSA report which contains raw data from SSA's Case Processing and Management System without regard to the amount of time Administrative Law Judges devote to actual adjudication. In other words, factors which would affect the number of dispositions (e.g., management and administrative responsibilities, special assignments, part-time status, union representational duties, retirements, deaths or extended leave, etc.) have not been taken into account.

Here is what Commissioner Astrue is failing to say. The 1500 SSA ALJs earn approximately $167,000 a year each. The salaries of those ALJs is $2 billion 505 million a year. That figure does not include the about $3 billion a year which pays the salaries of the ALJs support staff and Commissioner Astrue's salary and that of his support staff. Also 20% of the ALJs do not hold any hearings.

Some ALJs decide 200 cases per month without holding hearings. They award benefits in 100% of their cases, trying to "pay down the backlog" like the judge in Huntington, W.Va., who awarded benefits in every case he saw in the first six months of fiscal 2011.

A GS-9 lawyer could perform the same function at a fraction of the cost. A GS-9 lawyer earns about $40,000 a year. The cost to the taxpayer of 1500 such lawyers would be only $60 million a year. That is much less than the $2 and a half billion in salaries to 1500 ALJs. That is where the cuts should begin, not with benefits to claimants.

Just 4 years ago in the middle of the economic downturn there were 1200 ALJs. Today there are upwards to 1500 according to Commissioner Astrue. The backlog of cases waiting to be heard has not decreased, despite pressure from Mr. Astrue to force the ALJs to "pay down the backlog". Yet, Mr. Astrue keeps hiring more judges at $167 thousand a year. It appears that Commissioner Astrue is trying to lower the unemployment rate by hiring more judges while President Obama is having difficulty creating jobs for mainstream America.

Commissioner Astrue can be vague in his testimony before Congress. We can be specific as to who the ALJs are and how many cases they decide each month and their reversal rates. See http://www.ssa.gov/appeals/DataSets/03_ALJ_Disposition_Data.html.

A court-by-court analysis of close to two million Social Security Administration (SSA) claims has documented extensive and hard-to-explain disparities in the way the administrative law judges (ALJs) within the agency's separate hearing offices decide whether individuals will be granted or denied disability benefits.

The organization analyzed about 2 million claims heard between fiscal 2006 and fiscal 2011, the report says.

"Even within the individual offices there is not a clear consensus among the judges about which claims should be awarded versus which should be denied," the report says.

(http://trac.syr.edu/tracreports/ssa/254/)

Social Security Judges Under Fire

2011-06-15T10:35:00.000-07:00

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

Social Security Judges are under fire from Congress which recently discovered how much they are paying out in benefits. In a recent series of articles in the Wall Street Journal and other media, judges are being focused on for approving every disability case that comes before them. (http://online.wsj.com/article/SB10001424052702303654804576347790598676096.html; http://online.wsj.com/article/SB10001424052748704681904576319163605918524.html; http://www.sltrib.com/sltrib/news/51934862-78/disability-security-social-judges.html.csp; http://www.alternet.org/newsandviews/article/592475/wall_street_journal_tries_to_smear_west_virginia_judge_over_social_security_rulings?page=entire; http://www.huntingtonnews.net/4769; ). Some in Congress are wondering why we need to pay a judge $167,000.00 a year to rubber-stamp every case that comes before him. A lawyer at the GS-9 level making $40,000.00 a year or less could do the same and save millions of dollars a year. The Law of Averages says that even a trained chimpanzee would be right about half the time, and he would work for peanuts.
Americans seeking Social Security disability benefits will often appeal to one of 1,500 administrative law judges (ALJ) who help administer the program. In the first half of 2011, 27 ALJs awarded social security benefits 95% of the time because of pressure from Commissioner M. Astrue. Nationwide over 100 ALJs are approving 9 out of every 10 cases that come before them. The cases they fail to approve are likely to be approved by the Appeals Council, which works for the Commissioner. Senate and House Committees are investigating the issue. Approving all cases without even reviewing the file is called “paying down the backlog”. Judges are under pressure to move cases quickly in order to clear a backlog of 730,000 pending cases. The pressure comes directly from the Commissioner of Social Security. This is one of the things that I discuss in detail in the book “socialNsecurity”, available at http://judgelondonsteverson.com; and I put it in proper perspective. Having spent about 20 years observing the competing forces that produce a judge who reverses 100% of his cases, while another reverses less than 10%, I have a better handle on this issue than a reporter who writes a sensational article. Much of my insight and explanation of the competing forces is spelled out in my book “socialNsecurity, Confessions of a Social Security Judge”. Anyone looking for more historical and recent statistics on this subject along with an explanation of how the system works can find easy readable information in my book.

An American Tragedy, The Webster Smith Case Is An American Tragedy.

2011-04-17T13:20:00.000-07:00

Why Was Webster Smith court-martialed?

The Webster Smith Story is an American tragedy. It is not just the story of a Black Coast Guard Academy cadet; it is the story of an American family. It is the story of his mother, Belinda; and his father, Cleon; his wife, Lindsey and their daughter; and of his sister and brothers. It is the story of the friends of Webster Smith. They have all been harmed by the violence directed at their son, brother, husband, father and friend.

At the Coast Guard Academy, Webster Smith was a member of the Eclipse, Track Team, Football team, Regimental Staff, and a Swab summer Staff. He represented the Coast Guard in Washington DC concerning fitness and nutrition programs. He received numerous silver stars and never received a demerit prior the incident and investigation in 2005 that led to his court-martial.

To his classmates, teachers, and coaches Webster Smith appeared to be a magnetic, charming and gifted man, who had risen above his circumstances. Yet, in a moment, as if in the twinkling of an eye, a swift series of events diminished his popularity, vilified his name, and assailed his honor. His image was converted by senior Coast Guard officers from a popular athlete and nice guy to that of a sexual predator and public enemy number one at the Coast Guard Academy.

Webster Smith had dared to dream some big dreams. Like Alex Haley he had dared to believe that he could rise in the USCG to the highest level to which his talents and initiative could take him.

His parents were middle class African Americans. His father, Cleon Smith, was a graduate of the Coast Guard Academy in the Class of 1978 along with Vice Admiral Manson K. Brown.

His mother, Belinda Ingram Smith, believed in God and a good education. After attending college at WSSU for four years she went on to become the first Black female Crime Scene Investigator in the history of the Winston-Salem police Department.

This unbelievable turn about in what had been a Black success story is a singularly American tragedy.

That a cadet so deeply respected and loved by his coaches and classmates could evoke such an outpouring of hate and anger from the senior officers at the Coast Guard Academy is a Coast Guard tragedy and an American tragedy.

All of the female cadets involved with and associated with Webster Smith escaped clean without any consequences for their actions or their behavior. Mother Nature was the only one who exacted a penalty. Natural Law resulted in a pregnancy for his girlfriend. An abortion followed.

If women are equal, they should be treated as equal. Not a single woman was disciplined under the UCMJ or the cadet regulations. All of the female cadets involved in the Webster Smith case graduated and were commissioned as Coast Guard officers. Their testimony at the court-martial painted a picture of female cadets who were untrustworthy, arrogant, and certainly not ladies. Their conduct was unbecoming an officer and a lady. (Read more at http://judgelondonsteverson.com)

These women were witnesses at a public trial yet they were accorded the equivalent of rape shield protection. This was not a rape case. Not one of the women had been raped. There was testimony of consensual sex acts. Some of the consensual sex acts were unlawful because, among other things, they occurred in Chase Hall, or at Academy functions. How could unlawful consensual sex acts result in charges against only one of the participants? It takes two to tango.

Is it wrong for Black people to ask if there is a double standard? Would that amount to paranoia on the part of Black people? Or would that be considered playing the race card simply to inquire? Is it absurd to believe that anything more than pure chance resulted in the court-martial of Webster Smith? The fact that he was court-martialed speaks to a social reality that African-Americans are acutely aware of in America. Race is not a card to be dealt, but it determines whom the dealer is and who gets dealt a losing hand.

According to a 2008 General Accounting Office Report, from 2003 to 2006 there were NO sexual-harassment complaints at the Coast Guard Academy, but there were 12 incidents of sexual assault reported to the Coast Guard Investigative Service (CGIS), with one incident in 2003, one in 2004, “NONE” in 2005 and 10 in 2006. It is hard to conceive of the facts relied upon by, Captain Douglas Wisniewski, the Commandant Of Cadets when he asserted in 2005 that there was a climate of fear of sexual assault in Chase Hall.

The 10 incidents reported in 2006 would appear to have occurred after the Webster Smith court-martial. Webster Smith was removed from Chase Hall in 2005. Who was doing all of the sexual assaulting in 2006? Why were none of these people brought to justice? They could have been tried along with Webster Smith.

The U.S. Supreme Court refused to hear the appeal of Webster Smith. The justices declined to hear the case without comment. The decision of the Court of Appeals for the Armed Forces (CAAF) became the final decision in the case.

Thirteen female cadets and 11 males at the U.S. Coast Guard Academy (CGA) reported anonymously in an April 2008 survey that they experienced “unwanted sexual contact,” ranging from touching to forced sexual acts, during the 2007-08 school year.

More than three-quarters said that alcohol or drugs were involved and that the offender was a fellow cadet.
None of the women sought professional help and only 7 percent discussed the incident with authorities.

When Alexander Hamilton organized the Revenue Cutter Service in 1790 it was established in the Department of the Treasury. Later it became known as the Coast Guard. In 1966 it was placed in the Department of Transportation. Today it is the nucleus of the Department of Homeland Security. Webster Smith's case is currently being reviewed for clemency by the Secretary of the Department of Home Land Security, Janet Napolitano.

Webster Smith would have made an excellent military officer. It is Webster Smith and people like him that I want on the wall as our last line of defense for our American way of life protecting us from the great unwashed horde that is coming. Secretary Napolitano who do you want on that wall?
(Read more at http://judgelondonsteverson.com)

CONDUCT UNBECOMING an Officer and a Lady: A Case That Will Live In Infamy. The Conviction of Webster Smith. by Judge London Steverson

My rating: 4 of 5 stars

The Webster Smith Story is an American tragedy. It is not just the story of a Black Coast Guard Academy cadet; it is the story of an American family. To his classmates, teachers, and coaches at the Coast Guard Academy Webster Smith appeared to be a magnetic, charming and gifted man, who had risen above his circumstances. Yet, in a moment, as if in the twinkling of an eye, a swift series of events diminished his popularity, vilified his name, and assailed his honor. His image was converted by senior Coast Guard officers from a popular athlete and nice guy to that of a sexual predator and public enemy number one at the Coast Guard Academy.The Webster Smith case was a litmus test for justice in America. Every once in a while a case comes along that puts our humanity as a people on trial. Everything that we profess to stand for as Americans was on trial. I am ashamed of our justice system. This was a tragedy and a travesty.

I wanted to know why Webster Smith was court-martialed? Now I know. This book is the full story.

View all my reviews

Social Security Changes In 2011.

2011-01-20T10:04:00.000-08:00

The Social Security program will be tweaked in several important ways in 2011. Workers will get a temporary tax break on the amount they pay into the entitlement program, and several claiming options for retirees will be eliminated. Here's a look at how the Social Security program will change this year.
Lower Social Security taxes. The amount workers pay into the Social Security trust fund will temporarily drop from 6.2 percent of taxable wages up to $106,800 annually to 4.2 percent in 2011 only. For self-employed workers, the Social Security tax rate will drop from 12.4 percent to 10.4 percent next year, due to provisions of the Tax Relief, Unemployment Insurance Reauthorization, and Job Creation Act of 2010, signed by President Obama on December 17. Employers will continue to pay 6.2 percent of wages into the entitlement program.
The Social Security system's finances are not expected to be harmed because the trust fund will be reimbursed for the full amount of the tax break from the general fund of the Treasury. However, this change also means that the Social Security trust fund will no longer be completely funded directly by citizen contributions. "This pretty much ends the claim that Social Security is self-financing or that it doesn't contribute to the budget deficit," says Andrew Biggs, a resident scholar at the American Enterprise Institute and a former deputy commissioner of the Social Security Administration.
Free loan option eliminated. Retirees will no longer be able to get an interest-free loan from the Social Security trust fund this year. The Social Security Administration announced in December 2010 that individuals will not be able to begin payments at age 62, pay back all the benefits received at age 70 without interest, and then reclaim at a higher rate due to delayed claiming. Under the new rules, Social Security beneficiaries may withdraw an application for retirement benefits only within 12 months of their first Social Security payment and are limited to one withdrawal per lifetime. "This free loan costs the Social Security trust fund the use of money during the period the beneficiary is receiving benefits with the intent of later withdrawing the application and the interest earned on these funds," says the Social Security Administration in a statement about the rule change. The Center for Retirement Research at Boston College calculated that mass utilization of this claiming strategy could cost the system between $5.5 billion and $11 billion, primarily going to high-income households with enough liquid assets to pay back the benefits.
Retroactive benefit suspensions discontinued. Retirees will still be allowed to temporarily suspend their benefits and restart them later, which can result in bigger Social Security checks to account for the months or years in which payment was not received. However, beneficiaries will not be able to retroactively suspend benefits and pay back money already received in exchange for higher payments going forward. Retirees will be allowed to voluntarily suspend benefits only for months in which they did not receive payments or future benefits beginning the month after the request is made.
Paper checks retired. Retirees who apply for Social Security benefits on or after May 1, 2011, will no longer have the option of receiving a paper check in the mail. Seniors can have their entitlement payments directly deposited into a bank or credit union account or loaded onto a prepaid Direct Express Debit MasterCard. "This important change will provide significant savings to American taxpayers who will no longer incur the annual $120 million price tag associated with paper checks and will save Social Security $1 billion over the next 10 years," says Richard Gregg, Treasury Fiscal Assistant Secretary. Retirees already receiving paper checks will need to switch to direct deposit or the prepaid debit card by March 1, 2013.

Judge John Roll Shot And Killed At Safeway In Tuscon, Arizona.

2011-01-09T23:06:00.000-08:00

Chief Judge John M. Roll of the U.S. District Court of Arizona was shot and killed on January 8, 2011 in front of a Tucson, Arizona Safeway grocery store. He was 63.

The judge lived just a few blocks away from the supermarket. He had gone to mass and decided to stop at the store on his way home, according to Pima County Sheriff Clarence Dupnik.

The shooter has been identified as Jared Loughner, 22. He is in custody.

The gun used in the shooting was purchased legally at a Sportman's Warehouse.

FBI Director Robert Mueller is in Arizona to help coordinate the investigation, U.S. Attorney General Eric Holder announced. “We will hold accountable anyone responsible for these heinous acts,” he said.

President Obama praised the judge for having "served America’s legal system for almost 40 years." Authorities do not yet know "what provoked this unspeakable act," the President said in remarks this afternoon.

U.S. Chief Justice John Roberts said in a written statement that "Judge Roll’s death is a somber reminder of the importance of the rule of law and the sacrifices of those who work to secure it."

Arizona Chief Justice Rebecca White Berch remembered Judge Roll as "a kind man, a wise and fair jurist, and a friend to many within the legal community".

ABA President Stephen N. Zack called the shootings "a direct attack on our American way of life and the rule of law" and said Judge Roll was "a respected and admired jurist."

"This shocking and frightening event emphasizes the importance of protecting and respecting our civic life, and all those who participate in it," Zack said.

Judge Roll was nominated to the bench in 1991 by President George H.W. Bush. He had served as chief judge since 2006.

Judge Roll received his J.D. from University of Arizona College of Law in 1972 and a LL.M. from University of Virginia School of Law in 1990. He had served as a prosecutor for Tucson, Pima County and the U.S. Department of Justice in Arizona. He was a judge on Arizona’s Court of Appeals from 1987 to 1991, including serving as its presiding judge from 1988 to 1991.

Roll himself had been the subject of death threats in 2009, when he presided over a $32 million civil-rights lawsuit filed by illegal immigrants against an Arizona rancher.

When Roll ruled the case could go forward, he received more than 200 calls from members of the public in a single afternoon, U.S. Marshal for Arizona David Gonzales said.

Roll and his wife were given protection for about a month. "It was unnerving and invasive...By its nature it has to be," Roll said at the time.

Law enforcement officials identified four individuals responsible for the threats, but recommended the judge not seek prosecution. The judge took the Marshals advice.

"I have a very strong belief that there is nothing wrong with criticizing a judicial decision," Roll said. "But when it comes to threats, that is an entirely different matter."

According to federal courts spokesman David Sellers, the last federal judge to have been assassinated while in office was U.S. District Judge Robert Smith Vance, who was killed on December 16, 1989 by a mail bomb at his home in Alabama. Last year, Judge Roll’s colleague Judge Susan Bolton was threatened both before and after she issued a ruling on Arizona's controversial new immigration measure. The threats prompted U.S. Marshals to increase security at federal courthouses in the state, reports Politics Daily columnist Andrew Cohen.

Previous coverage:

ABAJournal.com reported in May 2009 that "Security Worries Spur Some Judges to Pack Heat, Use 24-Hour Guards"

John M. Roll, the chief federal judge in Arizona, was fatally wounded in the attack that killed five others and wounded at least 18 people.

“We’re all in kind of a state of shock here,” said Richard H. Weare, the clerk of the Federal District Court for Arizona, after hearing from the Federal Marshals Service, which confirmed the death.
President Obama praised Judge Roll as a jurist “who has served America’s legal system for almost 40 years.”

Judge Roll was appointed by the first President George Bush in 1991 and has been chief judge since 2006. His district is part of the sprawling Ninth Circuit, which covers federal courts throughout the West. He served as a state judge and as an assistant United States attorney for Arizona before he was appointed to the federal bench.

The chief judge of the United States Court of Appeals for the Ninth Circuit, Alex Kozinski, described Judge Roll as a tireless advocate for his district: “Of all the chief judges of the circuit, I must say he was always the hardest working — always looking out for his district. He’ll be a great loss to his family, but he’ll also be a great loss to the federal judiciary.”

He said Judge Roll was a good friend who sought increased federal resources for his district, which had seen a surge in felony cases related to drugs and crime along the border with Mexico.

Judge Roll was no stranger to the risks of public service. He and his wife were provided protection by the Federal Marshals Service in 2009 in connection with a case in which a group of Mexicans sued an Arizona rancher for $32 million. They accused the rancher of civil right abuses for stopping people at gunpoint as they crossed his land and then turning them over to the Border Patrol.

After Judge Roll ruled that the case could go forward, he received death threats. Judge Roll told The Arizona Republic that the situation was “unnerving and invasive.”

When several of those making the threats were identified, he declined to press charges at the recommendation of the Marshals Service.

“I have a very strong belief that there is nothing wrong with criticizing a judicial decision,” he said. “But when it comes to threats, that is an entirely different matter.”

John McCarthy Roll was born in Pittsburgh and graduated from the University of Arizona in 1969 and the university’s law school in 1972. He is survived by his wife, Maureen, three sons and five grandchildren.

Killings of federal judges are rare. The last to be murdered in office was Judge Robert Vance, who was killed by a mail bomb at his home in Mountain Brook, Ala., in 1989.

On Dec. 21, Judge Roll sent an e-mail to Judge Kozinski with an attached letter from Ms. Giffords and another member of Congress from Arizona, Ed Pastor, a Democrat. The two members of Congress encouraged the Ninth Circuit to “declare a judicial emergency” to help cope with the increased workload by extending deadlines under the speedy trial act. In the e-mail, Judge Roll wrote that the Congressional letter was “unsolicited but very much appreciated.”

Judge Kozinski speculated — “just a guess,” he said — that Judge Roll might have gone to the event on Saturday to thank Ms. Giffords for the letter. “And he gets killed for it.”

Judge Kozinski added, “If it can happen to him, it can happen to any of us.”

In a statement, John G. Roberts Jr., the chief justice of the United States, said: ”We in the judiciary have suffered the terrible loss of one of our own. Judge John Roll was a wise jurist who selflessly served Arizona and the nation with great distinction.”

Former Justice Sandra Day O’Connor, who lives in Arizona, said she was devastated by the news. “It is a horrible event, and heartbreaking,” she said. “The judge was just wonderful.”

“It sounds like something that might happen in some place like Afghanistan,” she said. “It shouldn’t happen in Tucson, Ariz., or anyplace else in the United States.”

ObamaCare Ruled Unconstitutional By Federal Judge in Virginia.

2010-12-13T13:53:00.001-08:00

RICHMOND - A federal judge in Virginia ruled 13 December 2010 that a key provision of the nation's sweeping health-care overhaul is unconstitutional, the most significant legal setback so far for President Obama's signature domestic initiative.

U.S. District Court Judge Henry E. Hudson found that Congress could not order individuals to buy health insurance.

In a 42-page opinion, Hudson said the provision of the law that requires most individuals to get insurance or pay a fine by 2014 is an unprecedented expansion of federal power that cannot be supported by Congress's power to regulate interstate trade.

"Neither the Supreme Court nor any federal circuit court of appeals has extended Commerce Clause powers to compel an individual to involuntarily enter the stream of commerce by purchasing a commodity in the private market," he wrote. "In doing so, enactment of the [individual mandate] exceeds the Commerce Clause powers vested in Congress under Article I [of the Constitution.]

Hudson is the first judge to rule that the individual mandate is unconstitutional. He said, however, that portions of the law that do not rest on the requirement that individuals obtain insurance are legal and can proceed. Hudson indicated there was no need for him to enjoin the law and halt its implementation, since the mandate does not go into effect until 2014.

The ruling comes in a case filed by Virginia Attorney General Ken Cuccinelli II (R), who said he was defending a new state statute that made it illegal to require people to carry health insurance in Virginia.

"I am gratified we prevailed," Cuccinelli said in a statement. "This won't be the final round, as this will ultimately be decided by the Supreme Court, but today is a critical milestone in the protection of the Constitution."

Federal officials responded that they are confident the statute will ultimately be upheld. A victory for Cuccinelli at this early legal stage means no more for the law's fate than previous rulings that have found the opposite, they have argued.

"We are disappointed in today's ruling but continue to believe - as other federal courts in Virginia and Michigan have found - that the Affordable Care Act is constitutional," Tracy Schmaler, a spokeswoman for the U.S. Department of Justice, said in a statement. "There is clear and well-established legal precedent that Congress acted within its constitutional authority in passing this law, and we are confident that we will ultimately prevail."

At the White House, spokesman Robert Gibbs pointed to the other rulings in favor of the individual mandate. "We are confident that [the individual mandate] is constitutional, he said. "We disagree with the ruling."

According to a new Washington Post-ABC News poll, a slim majority of all Americans - including almost all Republicans - oppose the health-care reform law. But the legislation's detractors are split on whether and how much of it should be rolled back.

Overall, 52 percent of those polled oppose the overhaul to the health-care system; 43 percent are supportive of it. Fully 86 percent of Republicans are against the legislation; 67 percent of Democrats support it. Independents divide down the middle, with 47 percent in favor and the same number opposed.

Most of those who oppose the health-care changes - 59 percent - want the law repealed, but 38 percent would prefer a "wait and see" approach. Democrats who oppose the law generally support waiting to see how the law operates, while most Republicans would prefer to see it repealed.

Republicans, though, are divided about whether the pullback should be a total repeal or only a partial one. Among Republicans opposed to the health-care package, 39 percent want a complete repeal, and 32 percent want to cancel parts of the law.

In large part, the mixed approach to amending the legislation reflects high Republican support for components of the legislation.

The Virginia suit is one of 25 legal challenges to the federal law wending their way through the federal courts across the country. In two other lawsuits, judges sitting in Michigan and Lynchburg, Va., have found that the same provision of the law passed legal muster. A third judge in Florida is also weighing constitutionality of the individual mandate in a suit jointly filed by 20 states.

The statute's constitutionality will ultimately be determined by the U.S. Supreme Court.

The ruling by Hudson, an appointee of President George W. Bush's, was widely anticipated based on tough questions he lobbed at Obama administration lawyers in oral arguments in his Richmond courtroom.

But the legal defeat will deal a significant political blow to the law, cheering those who have predicted its demise will come from adverse legal rulings rather than congressional repeal.

The Virginia suit would ordinarily next be heard by the Fourth Circuit Court of Appeals. Cuccinelli has indicated, however, that he would like to bypass the appeals court and move directly to the Supreme Court, an extraordinary legal maneuver that would require the high court to decide that the case held extreme public importance and intervene immediately.

He has asked the White House to sign on to the request, arguing they, too, would benefit from a quick resolution to legal questions surrounding the law. However, it is not clear whether the White House will agree.

A senior administration official has called that route "very unusual," noting that another suit is already pending before the Fourth Circuit, but declined to take the issue entirely off the table.

No more Appeals For Webster Smith.

2010-12-08T14:58:00.000-08:00

A final judgement has been entered in the Case of Cadet Webster Smith. He fought a good fight; he kept the faith; and, he exhausted his judicial remedies.

Hard cases make bad law. In this case, the facts were not so hard to distinguish as the defendant was of the wrong persuasion.

IN THE SUPREME COURT OF THE UNITED STATES OF AMERICA

No. 10-18
Title: Webster M. Smith, Petitioner
v.
United States

Docketed: June 30, 2010
Lower Ct: United States Court of Appeals for the Armed Forces
Case Nos.: (08-0719)
Decision Date: March 29, 2010

~~~Date~~~ ~~~~~~~Proceedings and Orders~~~~~~~~~~~~~~~~~~~~~
Jun 28 2010 Petition for a writ of certiorari filed. (Response due July 30, 2010)

Jul 30 2010 Brief amicus curiae of National Association of Criminal Defense Lawyers filed.
Jul 30 2010 Brief amicus curiae of United States Army Defense Appellate Division filed.

Oct 28 2010 Brief of respondent United States in opposition filed.
Nov 5 2010 Reply of petitioner Webster M. Smith filed. TBP
Nov 8 2010 DISTRIBUTED for Conference of November 23, 2010.
Nov 29 2010 Petition DENIED.

--------------------------------------------------------------------------------

~~Name~~~~~~~~~~~~~~~~~~~~~ ~~~~~~~Address~~~~~~~~~~~~~~~~~~ ~~Phone~~~
Attorneys for Petitioner:
Daniel S. Volchok Wilmer Cutler Hale and Dorr LLP (202) 663-6000
1875 Pennsylvania Avenue, NW
Washington, DC 20006
Party name: Webster M. Smith
Attorneys for Respondent:
Neal Kumar Katyal Acting Solicitor General (202) 514-2217
United States Department of Justice
950 Pennsylvania Avenue, N.W.
Washington, DC 20530-0001
SupremeCtBriefs@USDOJ
Party name: United States
Other:
Jonathan L. Marcus Covington & Burling, LLP (202) 662-6000
1201 Pennsylvania Avenue, NW
Washington, DC 20004
jmarcus@cov.com
Party name: National Association of Criminal Defense Lawyers

Jonathan F. Potter Senior Appellate Counsel United States Army (703) 588-6717
Defense Appellate Division
901 N. Stuart Street
Arlington, VA 22203
jonathan.potter@conus.army.mil
Party name: United States Army Defense Appellate Division

The only cadet court-martialed in the 130-year history of the Coast Guard Academy has run out of options to appeal his conviction.

Cadet Webster Smith already served time behind bars, but continued to fight all the way to the U.S. Supreme Court.

After more than four years, the Smith case is over. The former Coast Guard cadet hit a dead end when the U.S. Supreme Court has decided not to hear his final appeal.

Smith was acquitted of rape charges, but served five months in a military prison after being convicted of sodomy, extortion and other charges.

He was also kicked out of the Coast Guard Academy.

Smith has claimed in multiple appeals that his constitutional rights were violated at his trial.

He said he wasn't allowed to ask one of the female cadets who accused him of rape about her past, saying he wanted to show that the woman known as Cadet S.R., had a motive to lie about what happened with Smith.

He claimed their sexual encounter was consensual.

Since the nation's high court has declined to hear Smith's case, the final judgment comes from the U.S. Court of Appeals for the Armed Forces(CAAF).

In March the court ruled that his conviction should stand, saying "further cross-examination of Cadet S.R. was not 'constitutionally required.'"

Many Supreme Court experts thought the high court might take Smith's case, but the justices declined the case without comment. Congress is deadlocked; the President is weakened; and, the Supreme Court does not appear to be in a mood to settle conflicts of law between the Circuit Courts. Since nature abhors a vacuum, this may be a good time to legislate from the bench.

This case implicates a deep 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 crossexamination
of Shelly. That approach conflicts with the holdings of five circuits, which consider comparable Confrontation Clause claims de novo,
reserving abuse-of-discretion review for nonconstitutional
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 crossexamination]
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 this case perpetuates 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 at issue warranted resolution
by the Supreme Court. The constitutionality of restrictions
on cross-examination arises frequently in criminal prosecutions, and in every part of the country. Those cases also show that the conflict over the standard for appellate review of such restrictions is established;
there is no benefit to be gained by giving the lower courts additional time to consider the issue. Moreover, the question presented was important, because the standard of review can determine the outcome of an appeal. The difference between a rule of deference and the duty to exercise independent review is much more than a mere matter of degree. In even moderately close cases, the standard of review may be dispositive of an appellate court’s decision. That is particularly true when one
standard is highly deferential: CAAF, for example, has stated that “the abuse of discretion standard is a strict one,” satisfied only when “[t]he challenged action [is] arbitrary, fanciful, clearly unreasonable, or clearly erroneous".

Also, disuniformity created by the conflict directly
affects a fundamental individual right. Some defendants
in criminal cases enjoy less protection of the critical
right to confront their accusers because of the fortuity
of where their trials were held,or, as to cases decided
by CAAF, because they have chosen to wear the nation’s uniform.

The Webster Smith case presented a good vehicle to resolve the circuit
conflict. Webster Smith’s standard-of-review argument was both pressed and passed upon in the court of appeals, rendering the issue suitable for review by certiorari. In addition, CAAF’s rejection of Smith’s argument may well have determined the ultimate outcome. Even applying highly deferential review, CAAF was narrowly divided as to the constitutionality
of the military judge’s ruling in this case. If even one of the three judges who deemed that ruling not to be an abuse of discretion were to conclude, upon reviewing without deference, that it was inconsistent
with the Sixth Amendment, Webster Smith would have prevailed.

Smith now lives in Austin, Texas, with his wife and daughter. He's required to register as a sex offender there for the rest of his life.

Justice truly was not served in this case. What is happening in America?
What happened to Freedom of Speech and Freedom of the Press? With the dumbing-down of the American educational system, most Americans now seem to know little and care less about their fundamental freedoms and civil liberties. Some believe that the police have a right to enter their homes without probable cause or a warrant. They do not believe that they have the right to "just say No".

In the Land of the Free and the Home of the Brave fundamental freedoms are being challenged as never before. Senators on Capitol Hill sound like a lynch mob calling for the head of the Wikileaks leader who published diplomatic cables on the internet. Many of the cables were little more than embarassing gossip. Yet, the administration that came into town riding the "transparency in government" horse are scrambling to keep its in-house chatter secret. We have not seen this much ado about release of tapes and documents since Richard Nixon and Alexander Butterfield let the cat out of the bag with the Watergate Tapes brew-ha-ha.

He Fought The Law, And The Law Won. Undisputedly.

2010-11-19T16:17:00.000-08:00

MIAMI (Reuters) - Tax avoidance is legal. Tax evasion is not. Warren Buffet, one of the riches men in the world pays no income taxes. He pays tax lawyers millions a year in fees to show him how to avoid taxes. Actor Wesley Snipes made million by hard work, but his accountants and advisers counselled him to evade taxes. The result is that Warren Buffet and Bill Gates go around the world doing good dees; Wesley Snipes goes to jail.

Wesley Snipes was ordered on Friday, 19 November 2010, to start serving a three-year prison sentence for failing to file income tax returns by a federal judge who rejected the Hollywood star's bid for a new trial.

"The defendant Snipes had a fair trial ... The time has come for the judgment to be enforced," U.S. District Judge Terrell Hodges said in his ruling.

Revoking bail for the 48-year-old star of the "Blade" trilogy, the judge ordered him to report to prison as directed by the U.S. Marshals Service or Bureau of Prisons.

It was not clear when or where Snipes would begin serving his time behind bars, however. His lawyer, Daniel Meachum, has said he would appeal if a new trial was denied.

Meachum told the Orlando Sentinel the ruling was shocking.

"Wesley is very disappointed but staying strong and positive," the newspaper quoted Meachum as saying.

Snipes had already lost his appeal of the prison sentence stemming from his 2008 conviction in Hodges' Ocala, Florida, court on three counts of "willful failure to file tax returns" for 1999 through 2001.

Snipes was found not guilty of five other counts in the high-profile felony tax case.

In seeking a new trial, Meachum had argued that jurors in the original trial were biased and that the prosecution's star witness had his own criminal problems.

At his sentencing, prosecutors said Snipes, a resident of Windermere, Florida, had earned more than $38 million since 1999 but had filed no tax returns or paid any taxes through October 2006.

Although he is best known for his roles in action films, Snipes has also had critical success in comedies like "White Men Can't Jump" in 1992. He played the lead in director Spike Lee's interracial drama "Jungle Fever" in 1991 and also played the jazz saxophonist in Lee's "Mo' Better Blues" in 1990.

Eric Thompson, a supervisor in the U.S. Marshals Service office in Orlando, Florida, said the Bureau of Prisons would notify Snipes and his lawyer of a surrender date.

"He'll probably get it by certified mail," Thompson said.

He declined to say what prison was likely to be selected for Snipes except to say that it would not be in Florida.

A listing for Snipes already posted on the Federal Bureau of Prisons website says his prisoner ID or registration number as 43355-018, his location is "in transit" and his release date is "unknown."

Violence Against Social Security Judges Increasing.

2010-11-14T18:34:00.000-08:00

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

The PowerPoint released by Erskine Bowles and Alan Simpson, the co-chairs of the National Commission on Fiscal Responsibility and Reform ("The Deficit Commission"), said we should "Reform Social Security for its own sake, not for deficit reduction."
Social Security has nothing to do with the deficit. Not now, not ever. However it has everything to do with political theater and public disinformation.
SocialSecurity is a political football, and now we are beginning the political Super Bowl Season.
Critics of Social Security have frequently made alarming claims about the future of the system to support calls for "reform". Opportunists are posturing and trying to humanize the Social Security Administration (SSA). In order to do that the first group they sieze upon to spot light are the Administrative Law Judges (ALJ) at SSA, the 1300-1400 judges who decide disability cases.

So now the SSA and its programs are at center stage of the public political debate. An avalanche of news articles has been triggered. One Associated Press article about violence against SSA ALJs became the most frequently Email-ed article on Yahoo within 48 hours of publication two days ago. However, the article can be very misleading without some insider background information.

The public is being manipulated with these articles. These articles are a diversion. They seek to make the judges appear as victims, while it is the American public who are being victimized. The judges are gatekeepers for the Social Security Trust Fund. To understand how and why read "socialNsecurity, Confessions of a Social Security Judge" at www.judgelondonsteverson.com.

The AP article "Violence Against Social Security Judges" could have been written 10 or even 20 years ago. Why now? The incidents cited are over 10 years old. The incidents of violence have not increased, only the threats. The threats are commonplace and go with the job.

The number one complain in disability cases in back pain. The second most common complain is a mental inpairment. Many of these claimants are seriously mentally impaired; some are certifiably insane. They talk out of their heads; and , they make threats. The ALJ is the first and sometimes only embodiment of the SSA and the Federal Governmant, so they make threats against them. But they have no means or opportunity to carry out the threats. So, by and large the threats are harmless.

Some judges will not hold a hearing without an armed Federal Protective Service officer in the hearing room. Not me. I would postpone the hearing first. I only had to do that once in my entire career as an ALJ.

Judges in Illinois were carrying guns to work in their brief cases 15 and 20 years ago. They probably still are today. The ones that I knew about, had permits to carry a fire arm. The state and the city fire arm licensing authorities must have been satisfied that there is and was a valid threat to their safety.

I have been threated. Attorneys representing claimants have been threated in my courtroom. I have heard things like "if I loose my benefits, I will kill you". That was said by a Mexican gang member with tear drops tatoos on his face and neck to an attorney in my court room.

I never let them know where I lived. I did not give out my home address. After work, I was always cautious and vigilant in the parking lot. We had to park in the same lot as the claimants. They knew our cars.

I never went straight home after work. I drove around and made sure no one was following me.

I lived less than one mile from the Downey Hearing Office. I was prepared to meet violence at the office but not at home. I was a military veteran, so danger and threats went with the job. However, my family was not to be put at risk. If I was going to be shot, it would be at the office, not at home. If a vengeful claimant was going to blow up something it was going to be the office, not my home. An Oklahoma City type of attack was acceptable, but not violence at my private residence where my wife and 3 little children lived.

In July 1990 the Downey, CA Office Of Hearings And Appeals (OHA) was at 11903 Downey Avenue. I was assigned to the Downey OHA, so I bought a house on Downey Avenue. It was less than two miles from my home to the office. I could have walked to work in half an hour. For many months I did not drive to work; I rode a bicycle. I stopped riding the bicycle when several vision impaired claimants almost ran me down in the parking lot. It was safer to drive than to get killed or injured on a bicycle. I was exposed to greater physical threats from routine anonymous claimants coming and going in the parking lot than I was from disgruntled revenge seeking claimants who intended to subject me to physical injury.

In the ALJ Training School in Fredericksberg, VA we told to try to remain anonymous in the field. Judge Tommy D. Capshaw told us to try to keep a low profile. He told us to get rid of the personalized license plates on our cars and to keep unlisted phone numbers. I rented a post office box for my personal mail. Periodicals, like Time and Newsweek magazine and the Christian Science Monitor, came to the office.

I never gave out my home address. My business cards listed the office address as my address. The cards were printed by SSA OHA without my request. Darlene Robertson, the Office Manager at OHA at that time, just came into my office one morning and gave me a box of cards.

I was the only ALJ who lived in Downey; all the other judges lived over 20 miles away in anonymous neighborhoods. David Chase Linehand kept an apartment in Downey, but he lived in San Bernadino, CA.

In about 1995 OHA moved to a new 15 year leased space above the Downey National Bank at 8345 Firestone Boulevard. This was one block off Downey Avenue, but it was one mile closer to my home. My commuting distance to work was cut in half.

This closer proximity to my home frightened me. I was concerned for the safety of my wife and children. All of my children were under 6 years of age. My wife was overly concerned and was frequently cautioning me never to give out our home address. She had seen some of the claimants entering and leaving the office and she was frightened by their appearance. Some of them looked dangerous at first glance.

We received complaints from the management of the bank downstairs that the claimants were disturbing their customers. Often claimants would enter the bank thinking they were at the OHA, which was on the second floor. Many claimants had complained that the Notice of Hearing was deficient was too vauge about the office address. The address in the Notice only gave a street address; it did not contain the suite number. Many claimants came to hearings late because they had had trouble locating the OHA. They had been in the bank downstairs, or they had gone to the Embassy Suites hotel next door.

My wife never allowed me to entertain the staff at our home because she did not want to give out our home address. We had hosted birthday parties for our children where one or two of the office staff had attended, but those were rare. Even though I lived closer to the office than any other judge, I tried to keep home and office as far away from each other as possible.

These were merely precautions. I had no illusions about how precarious our real safety net was. For the first five years I was a judge, our office had no security guard or agent from the Federal Protective Service. For the next ten years the guards in most offices did not search incoming claimants and were not allowed to use a wand to detect concealed metallic objects, such as guns or knives. For the next five years the office management staff appeared to spend so much time harassing the security guard that he spent as much time as possible away from his post avoiding management. Any safety measure could always be circumvented. Every e-mail sent can be retrieved with a few mouse strokes. Most claimants brought along a friend or family member who was a potential threat to the office personnel. One random glance or a photo snapped from a phone-camera at someone's social security number, and that number became a commodity for sale on the streets of Los Angeles. One phone call and our sanctuary could become our killing field. I was prepared to accept that level of risk at the office but not at home.

My next door neighbors were Richard and Sally Randolf. Sally was an elementary school teacher in Pico Rivera, CA. One day without any warning someone walked up to her front door in broad daylight and fired three shots through her front door. She had two children the same ages as my children. They were at home. We never found out what the motive was for the shooting. Fortunately no one was killed. I had the agonizing feeling that they were looking for my home but went to the wrong address. Our house numbers were only three consecutive numbers apart. I still believe that I dodged a bullet that day. To this day, we do not know who or why someone would shoot throngh the front door of a residence on my block. This case remains an "unsolved shooting incident" at the Downey Police Department.

The AP reporter acknowledged that while no judges were harmed this year, there have been past incidents. The first example cited was that of a female judge in the Los Angeles Office of Disability Adjudication and Review (ODAR). She was hit over the head with a chair during a hearing. That is not exactly accurate, but I am familiar with the incident. The ALJ made some fundamental mistakes. The incident was avoidable. The judge deviated too far from standard procedure.

The ALJ in question had been transferred from the Long Beach Office of Hearings and Appeals (OHA) to the Downtown Los Angeles ODAR. She conducted the hearing in a formal manner. She wore a black robe; she sat at the judge's bench; she remained distant and removed from the claimant who was seated at the claimant's table which was below and separated from the judge's bench. Aside from the judge and the court reporter there were only two other people in the hearing room. Those were the claimant and her adult daughter. the claimant was not represented by an attorney and no attorney was present.

The claimant was alleging a mental impairment. She claimed that she could not engage in work on a consistent basis because her mental impairment prevented her from maintaining persistence, concentration, and pace. The ALJ was not convinced and something about her questions and her demeanor must have relayed that message to the claimant and her daughter. The judge was going to deny her claim. The conversational exchanges became heated. So, the ALJ closed the hearing and left the hearing room. Then she made a fundamental error.

The judge left the room, removed her robe, came back to the hearing room, and sat down at the table with the claimant and her daughter. It is not clear why she felt this little friendly chat was necessary. She had already as much as told the claimant that she was not going to win her case. She was not going to receive disability benefits. The conversation became heated. The claimant's daughter became excited and irate. The judge jumped up and tried to leave the hearing room and the daughter picked up a chair and threw it at the judge. This was predictable. The judge lowered the barrier and put herself on the same level with the claimant.

This is not the kind of violence that most judges are afraid of. Most judges would not have put themselves in this kind of a risky situation. This was practically an invitation to precipitate an incident. Moreover, usually the cases are so tightly scheduled, one after another, that most judges would not have had time to have a nice little touchie-feelie chat with a mentally deranged claimant who did not have a lawyer present to represent her.

WASHINGTON – Judges who hear Social Security disability cases are facing a growing number of violent threats from claimants angry over being denied benefits or frustrated at lengthy delays in processing claims.

There were at least 80 threats to kill or harm administrative law judges or staff over the past year — an 18 percent increase over the previous reporting period, according to data collected by the agency.

The data was released to the Association of Administrative Law Judges and made available to The Associated Press.

One claimant in Albuquerque, N.M., called his congressman's office to say he was going to "take his guns and shoot employees" in the Social Security hearing office. In Eugene, Ore., a man who was denied benefits said he is "ready to join the Taliban and hurt some people." Another claimant denied benefits told a judge in Greenville, S.C., that he was a sniper in the military and "would go take care of the problem."

"I'm not sure the number is as significant as the kind of threats being made," said Randall Frye, a judge based in Charlotte, N.C., and the president of the judges' union. "There seem to be more threats of serious bodily harm, not only to the judge but to the judge's family."

Fifty of the incidents came between March and August, including that of a Pittsburgh claimant who threatened to kill herself outside the hearing office or fly a plane into the building like a disgruntled tax protester did earlier this year at the Internal Revenue Service building in Austin, Texas.

A Senate subcommittee is expected to hear testimony on Monday at a field hearing in Akron, Ohio, about the rising number of threats, as well as the status of the massive backlog in applications for disability benefits, which are available to people who can't work because of medical problems.

Nearly 2 million people are waiting to find out if they qualify for benefits, with many having to wait more than two years to see their first payment.

Judges say some claimants become desperate after years of fighting for money to help make ends meet.

"To many of them, we're their last best hope for getting relief in the form of income and medical benefits," said Judge Mark Brown, a vice president of the judge's union and an administrative law judge hearing cases in St. Louis.

While no judges were harmed this year, there have been past incidents: A judge in Los Angeles was hit over the head with a chair during a hearing and a judge in Newburgh, N.Y., was punched by a claimant when he showed up for work.

In January, a gunman possibly upset about a reduction in his Social Security benefits killed a security guard during a furious gunbattle at a Nevada federal courthouse.

About 1,400 administrative law judges handle appeals of Social Security disability claims at about 150 offices across the country. Many are in leased office space rather than government buildings.

Brown said the agency provides a single private security guard for each office building that houses judges. Frye said he has sought more security and a review of the policy that keeps guards out of hearing rooms. He said Social Security Commissioner Michael J. Astrue has promised to look into it.

Social Security Administration spokeswoman Trish Nicasio said the agency continually evaluates the level and effectiveness of office security and makes changes as needed.

"We are taking appropriate steps to protect our employees and visitors while still providing the level of face-to-face service the public expects and deserves," Nicasio said.

Visitors and their belongings are screened before entering hearing offices and hearings room, she said, and reception desks are equipped with duress alarms to notify the guard immediately of any disturbance.

Chief Judge John M. Roll of the U.S. District Court of Arizona was shot and killed on January 8, 2011 by a gunman in front of a Tucson, Arizona Safeway grocery store. He was 63
Judge Roll was appointed by President George H. W. Bush in 1991 and has been chief judge since 2006. His district is part of the sprawling Ninth Circuit, which covers federal courts throughout the West. He served as a state judge and as an assistant United States attorney for Arizona before he was appointed to the federal bench.

Judge London Steverson was appointed by President George H. W. Bush in 1990.

Security Worries Spur Some Judges to Pack Heat, Use 24-Hour Guards

Social Security Administration Keeps Claimants In The Dark.

2010-10-14T21:12:00.001-07:00

(Commissioner Michael Astrue)

Social Security Administration Keeps Claimants In The Dark.

Today’s unprecedented economic crisis is bringing into sharp focus Social Security’s role as the backbone of the country’s retirement security, as well as the irresponsibility of former President George W. Bush’s policies in regard to this critical program.

Part of the Bush legacy that Astrue has continued are personnel and labor relations policies that hobble agency staff and undermine SSA’s ability to fulfill its duty to the American public. For example, Commissioner Astrue has implemented a policy prohibiting SSA employees from advising SSA claimants regarding their benefit election options. Because benefit election options, such as month of election, impact the eventual amount of benefits received, this prohibition deprives SSA claimants of advice and information

socialNsecurity

2010-10-12T14:53:00.000-07:00

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

This is the ultimate insider's guide to the Social Security Disability Determination System. This book explains the Five Step Disability Evaluation Process and attempts to explain why the System does not work as it was intended. It describes the rules, regulations, exceptions, and court decisions that determine the outcome of an application for disability benefits. This is not another "how to" book about filing for Social Security disability benefits. This book is about how the system works. It concerns the nature of the Social Security Disability Determination process. Written by a veteran Social Security Judge this book will simplify the process and make the Social Security Disability Process work for you.

Have you ever wondered how to get Social Security Disability benefits or why your application was denied?

Whether you are an attorney representing claimants or a claimant trying to act as your own representative, this book will show you how to prevail and collect the benefits to which you are entitled.

Social Security Disability Insurance (SSDI) and Supplemental Security Income (SSI) are the two largest Federal assistance programs that provide financial support to those with disabilities. To qualify for benefits, you must meet specific medical criteria outlined by the Social Security Administration (SSA).

The application process can be extremely complicated and confusing.

Have you ever asked yourself:

At last a book is available that explains the Social Security Disability Determination Process in plain English.
This is the ultimate insider's guide to the Social Security Disability Determination System. This book explains the Five Step Disability Evaluation Process and attempts to explain why the System does not work as it was intended. It describes the rules, regulations, exceptions, and court decisions that determine the outcome of an application for disability benefits. This is not another "how to" book about filing for Social Security disability benefits. This book is about how the system works. It concerns the nature of the Social Security Disability Determination process. Written by a veteran Social Security Judge this book will simplify the process and make the Social Security Disability Process work for you.

Have you ever wondered how to get Social Security Disability benefits or why your application was denied?

Whether you are an attorney representing claimants or a claimant trying to act as your own representative, this book will show you how to prevail and collect the benefits to which you are entitled.

Social Security Disability Insurance (SSDI) and Supplemental Security Income (SSI) are the two largest Federal assistance programs that provide financial support to those with disabilities. To qualify for benefits, you must meet specific medical criteria outlined by the Social Security Administration (SSA).

The application process can be extremely complicated and confusing.

Have you ever asked yourself:
Who is eligible for Social Security Disability Benefits?

Can I apply for Social Security Disability or SSI?

How could I increase my chance of winning Disability and/or SSI benefits?

How much money would I receive in monthly payments?

Can I work and receive Social Security Disability Payments?

Is my family entitled to Social Security Disability benefits?

What diseases are considered for Social Security Disability benefits and SSI?

Do I have to hire a lawyer?

www.judgelondonsteverson.com
https://www.createspace.com/3406851
--

Billions for War, But Not A Penny For Seniors.

2010-10-12T11:08:00.000-07:00

As if voters don't have enough to be angry about this election year, the government is expected to announce this week that more than 58 million Social Security recipients will go through another year without an increase in their monthly benefits.

It would mark only the second year without an increase since automatic adjustments for inflation were adopted in 1975. The first year was this year.

"If you're the ruling party, this is not the sort of thing you want to have happening two weeks before an election," said Andrew Biggs, a former deputy commissioner at the Social Security Administration and now a resident scholar at the American Enterprise Institute.

The cost-of-living adjustments, or COLAs, are automatically set each year by an inflation measure that was adopted by Congress back in the 1970s. Based on inflation so far this year, the trustees who oversee Social Security project there will be no COLA for 2011.

This announcement about Social Security benefits raises more immediate concerns for older Americans whose savings and home values still haven't recovered from the financial collapse: Many haven't had a raise since January 2009, and they won't be getting one until at least January 2012.

"While people aren't getting COLAs they certainly feel like they're falling further and further behind, particularly in this economy," said David Certner, AARP's legislative policy director. "People are very reliant on Social Security as a major portion of their income and, quite frankly, they have counted on the COLA over the years."

Social Security was the primary source of income for 64 percent of retirees who got benefits in 2008, according to the Social Security Administration. A third relied on Social Security for at least 90 percent of their income.

A little more than 58.7 million people receive Social Security or Supplemental Security Income. The average Social Security benefit is about $1,072 a month.

Seniors prepared to cut back on everything from food to charitable donations to whiskey as word spread Monday that they will have to wait until at least 2012 to see their Social Security checks increase.

The government is expected to announce this week that more than 58 million Social Security recipients will go through a second straight year without an increase in monthly benefits. This year was the first without an increase since automatic adjustments for inflation started in 1975.

"I think it's disgusting," said Paul McNeil, 69, a retired state worker from Warwick, R.I., who said his food and utility costs have gone up, but his income has not. He lamented decisions by lawmakers that he said do not favor seniors.

"They've got this idea that they've got to save money and basically they want to take it out of the people that will give them the least resistance," he said.

Cost-of-living adjustments are automatically set by a measure adopted by Congress in the 1970s that orders raises based on the Consumer Price Index, which measures inflation. If inflation is negative, as in 2009 and 2010, payments remain unchanged.

Still, seniors like McNeil said they'll be thinking about the issue when they go to vote, and experts said the news comes at a bad time for Democrats already facing potentially big losses in November. Seniors are the most loyal of voters, and their support is especially important during midterm elections, when turnout is generally lower.

"If you're the ruling party, this is not the sort of thing you want to have happening two weeks before an election," said Andrew Biggs, a former deputy commissioner at the Social Security Administration and now a resident scholar at the American Enterprise Institute.

At St. Andrews Estates North, a Boca Raton retirement community, seniors largely took the news in stride, saying they don't blame Washington for the lack of an increase. Most are also collecting pensions or other income, but even so, they prepared to tighten their belts.

Bette Baldwin won't be able to travel or help her children as much. Dorcas Eppright will give less to charity. Jack Dawson will buy cheap whiskey instead of his beloved Canadian Club.

"For people who have worked their whole life and tried to scrimp and save and try to provide for themselves," said Baldwin, a 63-year-old retired teacher, "it's difficult to see that support system might not sustain you."

Baldwin and her husband mapped out their retirements, carefully calculating their income based on their pensions and Social Security checks. Trouble is, they expected an annual cost-of-living increase.

When we cut back, we're cutting back on niceties," Baldwin said. "But there are other people that don't have anything to cut back on. They're cutting back on food and shelter."

Many at St. Andrews said the cost-of-living decision won't affect who they vote for next month. But seniors tied the Social Security issue to what they see as a larger societal problem with debt, entitlements and hopefulness for the future.

"I'm kind of glad in a way," Stella Wehrly, an 86-year-old retired secretary, said of the freeze. "One thing depends on the other and when people aren't working there's not enough people feeding into the Social Security system."

Wehrly and her husband, Hank, said curtailing government spending is necessary to maintain the Social Security system.

"We have a generation now that we're not going to leave a very good legacy for," she said.

Jack Dawson, 77, said the freeze is the right move considering the state of the government and the American economy.

"Who would be surprised what's happened?" he asked. "I feel this is the right decision in light of the malaise."

More than 58.7 million people rely on Social Security checks that average $1,072 monthly. It was the primary source of income for 64 percent of retirees who got benefits in 2008; one-third relied on Social Security for at least 90 percent of their income.

At the Phoenix Knits yarn shop in Phoenix, 73-year-old owner Pat McCartney said she already worries about paying for utilities, groceries and gas. Not having the increase makes her worry even more.

"If I have any major expense, I don't know what I'll do," McCartney said while helping customers with their knitting. "I live on Social Security."

In Kansas City, Mo., Georgia Hollman, 80, said Social Security is her sole source of income. She would have liked a bigger check, but said she's grateful for what she gets.

"There isn't nothing I can do about it but live with it," she said. "Whatever they give us is what we have to take. I'm thankful we get that little bit."

Advocates for seniors argue the Consumer Price Index doesn't adequately weigh the costs that most affect older adults, particularly medical care and housing.

"The existing COLA formula does not account for the economic reality of the true costs that most seniors faced," said Fernando Torres-Gil, director of UCLA's Center for Policy Research on Aging and the first person appointed to the governmental post of assistant secretary for aging, during the Clinton administration.

Still, Torres-Gil said the political reality is different, and many feel seniors are lucky to have their checks determined by the CPI, instead of some new formula that might make it even harder to secure a raise.

"We may just lucky to keep the current index," he said.
(AP)

Social Security Checks Sent to The Dead.

2010-10-08T19:26:00.000-07:00

SOCIAL SECURITY SENT 72,000 Checks To Dead People.

A new report from the Social Security Office of the Inspector General says that the agency sent nearly 89,000 checks for $250 each to people who were dead or in prison. The payments were part of the American Recovery and Reinvestment Act of 2009. Of those who got checks, 71,668 – which totaled $18 million – went to people who had died. Incarcerated people received 17,348 checks, which added up to $4.3 million.

Some inmates were eligible to receive the payments because they'd been receiving Social Security before being locked up.

About half of the payments have been returned, but the Inspector General does not have the authority to attempt to find and take back the balance of them.

As part of the Obama's stimulus plan, a check was sent to a Maryland woman who died more than 40 years ago.

The woman's son, 83-year-old James Hagner, said he got the surprise when he checked his mailbox late last week.

"It shocked me and I laughed all at the same time," Hagner said. "I don't even expect to get one my own self, and I get one for my mother for 43 years ago?"

His mother, Rose, died on Memorial Day in 1967. Hagner said he'd like to frame it and hang it on his wall.

"I just want to keep it as a souvenir, that's all. I'll never cash it," Hagner said.

The reported noted that the Administration was not entirely at fault:

These conditions occurred because SSA (1) was unaware of beneficiary deaths and incarcerations that were reported after it had certified the ERPs, (2) relied on questionable data in its payment records, and (3) did not review all available records, such as the Numident for death information and Prisoner Update Processing System (PUPS) for beneficiary incarcerations.

In response to the report, Social Security Administration press person Mark Lassiter said: "Inaccurate payments are unacceptable".

That statement is not likely to put down the firestorm of criticism that will come from the press, the Congress and taxpayers. The sums of the mistake are relatively small compared to the cost of most programs, but as there is more talk about the damage that the deficit will have on the economy and future generations. The inefficiency of the federal government will come under more scrutiny.

The release of the information could hardly come at a worse time. Republicans are likely to seize on the report as an example of what is wrong with a federal government controlled by Democrats. It is the kind of information that people can hardly help but talk about incessantly.

The Social Security Administration has continued to pay millions of dollars in benefits to dead Americans, and other elderly U.S. residents are at risk of losing badly needed aid because they’re improperly recorded as deceased, federal investigators warn.

The consequences of either bureaucratic error can be severe.
“The addition of erroneous death entries can lead to benefit termination, cause severe financial hardship and distress to affected individuals,” investigators with the Social Security Administration’s Office of Inspector General noted in the report, which was quietly released recently.

The mistakes cost taxpayers and individual beneficiaries in different ways. Taxpayers are losing money when benefits are paid to the deceased. Individuals get into trouble when they’re prematurely pronounced dead.

In Southern California and elsewhere last year, investigators analyzed 305 Social Security beneficiaries who were recorded as deceased in their Social Security Administration files. At least 140 of them were still alive.

All told, investigators say, more than 6,000 current Social Security beneficiaries are recorded as being deceased.

In 1962, Lockheed Corp. charged the government $34,560 for 54 toilet covers or $640 each. The covers were meant for use on Navy ships. The story still circulates around Washington as an example of government waste and lack of oversight of expenses. To the legend of the toilet seat can now be added the legend of the checks to the dead.

MSPB FY 2009 Appeals Processing Results.

2010-10-07T09:34:00.000-07:00

MSPB FY 2009 Appeals Processing Results

Just in case anyone was interested -

The track record of your odds at getting an adverse agency decision reversed before the Merit Systems Protection Board. (MSPB).

The 2009 stats were release, and here is what they say:

Of the total of 7,998 decisions filed, only 174 resulted in the MSPB overturning the decision of the Agency.

The MSPB recently published its FY 2009 Annual
Report containing summaries of significant Board
decisions and detailed case processing results. The MSPB
issued 7,998 total decisions in FY 2009.

Significant Board decisions addressed issues such as MSPB appeals
procedures, alternative personnel systems, discrimination,
retirement, suitability, the Whistleblower Protection
Act, and veterans' rights under the Veterans
Employment Opportunities and Uniformed
Services Employment and Reemployment
Rights Acts.

MSPB's regional and field offices issued
almost 7,000 decisions with an average
processing time of 83 days. Of those, almost
56 percent (3,485 cases) were dismissed—
usually for lack of jurisdiction or timeliness.
MSPB's settlement and mediation programs provided an
opportunity for the parties to reach mutually acceptable
resolutions to their cases. As a result, almost 62 percent
of the remaining 2,780 appeals (1,720 cases) were settled
by the parties, meaning that MSPB did not rule on those
cases. Of the 1,060 appeals that were adjudicated on the
merits, 81 percent (859 cases) of the agencies' decisions
were affirmed, 16 percent (174 cases) were reversed and 2
percent (23 cases) were mitigated.

At headquarters, the Board issued 1,027 decisions
with an average processing time of 94 days or less. Of
the 850 decisions on Petition for Review (PFR) of Initial
Decisions issued by the Board, 79 percent (668 cases)
were denied, almost 10 percent (80 cases) were granted,
almost 6 percent (47 cases) were denied but reopened by
the Board, and less than 7 percent (55 cases)
were settled or dismissed. Of the 127 cases
that were reviewed by the Board, 49 percent
(62 cases) were remanded for reconsideration,
35 percent (44 cases) were affirmed, 7 percent
(9 cases) were reversed, and the remaining 9
percent of cases had other outcomes.

In addition, MSPB continues to issue legally supportable decisions, as evidenced
by the fact that the U.S. Court of Appeals for the Federal
Circuit left unchanged (dismissed or affirmed) over
90 percent of MSPB decisions that were appealed to
the Court. These results indicate that MSPB continues
to ensure that the Federal workforce has access to lots of
due process but very little justice.

Social Security: Example of gov't rigor mortis.

2010-10-07T09:26:00.000-07:00

Social Security: Example of gov't rigor mortis

Keeping government limited is a practical approach to governing that opens the door to growth and prosperity.

Why?

Consider a fundamental difference between business and government. Any businessman operating successfully is in touch with reality, with change, and acts with speed to make adjustments necessary to survive.

Businesses are not democracies, so a CEO can execute what needs to be done on the spot.

Government is the opposite. It is allergic to change. They say government programs are like headless nails. Once in, they're impossible to get out. Programs produce interests who then fight change.

So it should be obvious that if we want a nation that is vibrant, in touch with reality, changing as it needs to in a timely way, the reach of government must be limited.

Consider Social Security.

With annual expenditures almost 5 percent of the total U.S. budget, it's the single largest government spending program.

With a program of this magnitude, that impacts practically every working American, you'd think it would be a priority to keep it healthy and in tune with the times.

But it's just the opposite. It's the so called "third rail." Politicians don't want to touch it or talk about it. They don't want to upset anyone with the truth that the system is not just broken, but way out of touch with today's realities.

Social Security passed in 1935. Although there have been changes in the way of tax increases and expansions of the program, Social Security is essentially the same system as was passed 75 years ago.

Can you imagine any business still using a system that is 75 years old?

It's really older. If you go on the website of the Social Security Administration, it will tell you that the idea for Social Security originated with German Chancellor Otto Von Bismarck in 1889.

Here's just a few ways that our world has changed since 1935:

Our population has aged. In 1935, there were 16 working Americans paying payroll taxes to cover each retired American. Today there are only three working per retiree.

Americans are retiring earlier and living longer. In 1950, the median male retirement age and male life expectancy were about the same – 66. By 2005, the median retirement age for men was under 62 and the median male life expectancy was over 75.

Work habits and attitudes have changed dramatically. In 1973, 50 percent of the private sector male work force had been with the same employer for at least 10 years. By 2006, this dropped to 35 percent. The percentage with the same employer for at least 20 years dropped from 35 percent in 1973 to 20 percent in 2006.

We live today in an age of the Internet, global markets and increased individual mobility.

And the promise we get from our leaders is that they will save and preserve a system that was conceived 120 years ago and enacted here 75 years ago. This is leadership?

Not only is our Social Security system unsuited to our times, it is bankrupt. It went into a deficit situation this year and its overall unfunded liabilities – the total amount promised less the total amount for which there is funding – is almost $20 trillion.

In a recent Gallup Poll, 60 percent of working Americans said they don't expect to get their Social Security benefits. And in a recent Pew poll, 58 percent favored the idea of individuals keeping a portion of their Social Security taxes and investing it in a private retirement account.

We'll hear from Washington that to save this dinosaur, we must pay more taxes and retire later. In other words, we'd have a better deal keeping our taxes and putting them in our mattress.

Wake up, Washington. It's not 1935. It's 2010. If we don't get leaders who'll look reality in the eye, tell us the truth and retrofit out nation for the time in which we live, we won't have a nation.

(© 2010 by Star Parker)

The Merit System Protection Board Never Finds Discrimination.

2010-10-07T08:58:00.000-07:00

MSPB Continues to Refine Discrimination Analysis

It’s been a running joke, and for the employee’s bar not so much of a joke, that federal sector employment lawyers, HR folks, etc., really didn’t need to spend any time learning about the MSPB’s view of discrimination law for the simple reason that the Board never finds discrimination anyway. Could that be about to change? We’re still not seeing findings of discrimination from the MSPB, but suddenly it has an increased focused on the analysis of discrimination cases by its administrative judges. See Disparate Treatment by Any Other Name, Vol. I, Issue XV (2010).

The latest addition to the Board’s discrimination repetoire is Hodge v. Department of Homeland Security, 2010 MSPB 190 (September 15, 2010). In Hodge, the Board reversed the indefinite suspension of a Deportation Officer finding that an investigation into alleged misconduct was not sufficient reason to sustain the suspension where the agency did not rely on the crime provision of 5 USC 7513(b)(1). Having already reversed the suspension, the Board then went on to analyze the appellant’s claim of discrimination and the finding of the administrative judge that the appellant had failed to present a prima facie case of discrimination.

Because the case had gone to hearing, the Board found that the judge erred in analyzing whether the appellant had presented a prima facie case. Instead, the Board found that the judge should have simply proceeded to analyze whether the appellant had established that the agency’s reason for the indefinite suspension was pretextual. The Board cites Jackson v. U.S. Postal Service, 79 MSPR 46 (1998) for the proposition that when evidence has already been taken on a discrimination claim, it is error to analyze whether the appellant has presented a prima facie case and the analysis should proceed directly to the issue of pretext. The Board’s certainly correct about its own case law, but the reality is that the Board is simply following the dictates of the U.S. Supreme Court in U.S. Postal Service Board of Governors v. Aikens, 460 U.S. 711 (1983).

As Jackson duly notes, in Aikens the Supreme Court found that “[w]here the defendant has done everything required of him if the plaintiff had properly made our a prima facie case, whether the plaintiff really did so is no longer relevant[;] [t]he district court has before it all the evidence it needs to decide whether ‘the defendant intentionally discriminated against the plaintiff.’”

Of course, none of this helped the appellant in Hodge as the Board found there was insufficient evidence of pretext. The Board found:

[T]he appellant allegedly was involved in an incident with New Orleans police officers wherein she challenged their authority when they asked her to leave a car wash, resisted arrest, refused their attempts to handcuff her, and struck one of them in the face with her fist. IAF, Tab 4, Subtab 4(d) at 1. The misconduct of the three comparator employees consisted, respectively, of: being intoxicated and firing his weapon; having an affair with the wife of a man who was the subject of an investigation; and being the subject of domestic violence charges filed against him by the comparator’s wife. See Hearing Transcript at 120-21, 124. The conduct of the comparator employees clearly conflicts less directly with the duties of a law enforcement officer than the appellant’s direct and public confrontation with other law enforcement officers.

So, maybe we’re going to start seeing findings of discrimination out of the Board. On the other hand, one has to wonder. Is the conduct of the appellant in Hodge really less compatible with being a law enforcement than getting drunk and firing a weapon, having an affair with the spouse of someone who’s the subject of an investigation, and being charged with domestic violence? Hmm . . . perhaps it’s a good thing that the Board doesn’t get to hire law enforcement officers and only gets to decide on their discipline.
(By Ernest Hadley)

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All content © 2010 by Federal Employment Law Training Group - Wellfleet, MA

Social Security Administration Wrongfully Withheld $500 Million in Disability Benefits

2010-10-07T02:48:00.000-07:00

$500 Million in Suspended Disability Benefits Returned
The Social Security Administration wrongfully denied eligible beneficiaries because they believed that the applicants were wanted felons.

A federal court that decided for Martinez vs. Astrue ordered the Social Security Administration to return $500 million worth of suspended benefits to approximately 250,000 beneficiaries. The beneficiaries, who were wrongly identified as felons, were deemed ineligible through an arrest warrant database. They were consequently denied of their benefits for the last 10 years.

Gerald A. McIntyre, the lead attorney for the National Senior Citizen Law Center, logged the class action after discovering that many beneficiaries were being cut off when the SSA erroneously applied a 1996 law which prevented fleeing felons from collecting benefits. The suit was initiated in 2008 when Rosa Martinez, 53, a resident of Redwood City, CA, stopped receiving disability assistance because of a 1980 arrest warrant filed in Miami, FL. However, Martinez has never visited Miami. Martinez said, “They just told me I won’t be getting any more Social Security because I committed a crime in 1980...I was in a state of shock. And since then I became really sad and upset because I didn’t know what was happening to me. I was depending on this money.” Martinez became the lead plaintiff in the class suit. Likewise, many of the other victims shared similar names with known felons; others had warrants for minor infractions.

The SSA's warrant filtering procedure was supposed to ensure that fleeing felons cannot get disability benefits. McIntyre, on his reproach, said, “The vast majority of class members were not fleeing at all; many never knew that criminal charges were pending against them let alone that a warrant had been issued.” McIntyre also criticized the SSA's method of matching the first and last names of the beneficiaries with Social Security Numbers. “If they cannot discover a match, they will dig by using dates of birth.” The policy is still subsisting in selected parts of the United States.

SSA Commissioner Michael Astrue announced that they are currently mailing notices to the victims, informing them that they may reapply for benefits and submit a disability claim within the next six months. Under the terms of the settlement, in which the administration admitted no wrongdoing, the government is only repaying benefits owed, and will not be paying any punitive damages for loss of income or suffering.

Social Security Disability Insurance (SSDI) is a federal insurance program of the United States government that is funded by payroll taxes and is designed to provide an income for disabled individuals who are unable to work. If you are one of its rightful beneficiaries who received unfair or negative treatment, never sleep on your rights. Visit https://socialsecurity-disability.org for more information about SSDI.

Tony Curtis Received Cultural Diplomacy Award Same Day As Judge Steverson.

2010-09-30T19:50:00.000-07:00

Tony Curtis died September 30, 2010 at the age of 85. He will be remembered as both a Hollywood heartthrob and an actor with a gift for comedy. As the author of his own story he was met with mixed reviews. He was the son of Hungarian immigrants. On April 23, 2009 at about 5:00 PM at the American Embassy in Budapest, Hungary he was awarded the Cultural Diplomacy Award by Ambassador April Foley with Jeffrey Levine, the Charge d'Affaires, and Carolynn Glassman, the Cultural affairs Officer at the Embassy.

Mr. Curtis was not the only person to receive the Cultural Diplomacy Award that day in Hungary. Earlier in the day at the American Corner in Veszprem, Hungary Judge London Steverson had been presented with a Cultural Diplomacy Award. It was the opening day of the annual America Week Celebration in Hungary. The highlight of the day was the official opening of the Steverson Book Collection at the Veszprem Public Library. The Steverson Collection was a donation of over 5,000 books to the American Embassy and the people of Hungary from Judge Steverson's own personal collection. Judge Steverson's wife was born and raised in Veszprem, Hungary.

Marjorie Kehe of the christian Science Monitor had this to say about this talented Hungarian-American. Curtis wrote his own life story twice, once in "Tony Curtis: The Autobiography" (1993) and then again in "American Prince: A Memoir" (2008).

In general, "The Autobiography" was better received. Library Journal wrote, "This is Tony Curtis's story in his own words, and it is a corker. His depiction of a boyhood as a poor New York City street kid ... is moving as well as philosophical and is a recurring theme throughout his life and remarkably diverse career.... This is a literate, first-class "star" autobiography, frank and absorbing but not for the prudish."

Publishers Weekly, however, was tougher on Curtis, commenting that,"If Curtis's vanity didn't interfere, one could more readily sympathize with the man as a survivor of a mean childhood and the drug addiction from which he is recovering. Unfortunately, he blames most of his troubles on others, beginning with his parents."

USA Today said of "An American Prince" that it was "[f]illed with fond recollections of [Curtis’s] friendships with the famous and powerful but punctuated, too, by harsh words for Hollywood legends he says did him wrong…. Curtis spares few intimate details about his years as a Hollywood lothario, including his teenage affair with a redheaded, ponytailed Marilyn Monroe.”

Most readers, however, seemed to feel that while Curtis's recounting of his childhood in a tough Lower East Side Manhattan neighborhood (the son of Hungarian immigrants, he didn't learn to speak English till he was 5) was absorbing, Curtis's bragging about his conquests of the opposite sex (he was married five times and had many affairs) was unappealing. ("Fun for a while, then kerplunk .... falls, like a promising cake gone bad," wrote one Amazon reader.)

In the end, however, it is not Tony Curtis the writer or even the man who will be remembered as much as it will be Tony Curtis the actor, star of "Sweet Smell of Success" (1957), "The Defiant Ones" (1958), "Some Like It Hot"(1959), and "Spartacus" (1960). And perhaps that would have been fine with the man who wrote, in "American Prince," that “All my life I had one dream and that was to be in the movies.”

Assistant U. S. Attorney Commits Suicide.

2010-09-27T15:53:00.000-07:00

A Justice Department lawyer under investigation for possible misconduct in the prosecution of former senator Ted Stevens of Alaska committed suicide over the weekend, the law firm representing him confirmed.

Nicholas A. Marsh, 37, was one of several Justice lawyers under investigation by a special prosecutor for possible legal improprieties that last year led a judge to vacate Stevens's conviction in a corruption case. A spokeswoman for Marsh's lawyer, Robert Luskin, confirmed Monday that Marsh had killed himself, but offered no further details.

"Our deepest sympathies go out to Nick's family and friends on this sad day," Assistant Attorney General Lanny A. Breuer said in a statement, without commenting on how Marsh died. "The Department of Justice is a community, and today our community is mourning the loss of this dedicated young attorney."

Marsh was among several lawyers on the Justice team that prosecuted Stevens, a Republican. Stevens was defeated in his reelection bid shortly after his 2008 conviction and died Aug. 9 in a plane crash in Alaska.

(By Paul Duggan)

Judge London Steverson

2010-09-17T09:13:00.000-07:00

Judge London Steverson
London Eugene Livingston Steverson (born March 13, 1947) was one of the first two African Americans to graduate from the United States Coast Guard Academy in 1968. Later, as chief of the newly formed Minority Recruiting Section of the United States Coast Guard (USCG), he was charged with desegregating the Coast Guard Academy by recruiting minority candidates. He retired from the Coast Guard in 1988 and in 1990 was appointed to the bench as a Federal Administrative Law Judge with the Office of Hearings and Appeals, Social Security Administration.

Early Life and Education
Steverson was born and raised in Millington, Tennessee, the oldest of three children of Jerome and Ruby Steverson. At the age of 5 he was enrolled in the E. A. Harrold elementary school in a segregated school system. He later attended the all black Woodstock High School in Memphis, Tennessee, graduating valedictorian.
A Presidential Executive Order issued by President Truman had desegregated the armed forces in 1948,[1] but the service academies were lagging in officer recruiting. President Kennedy specifically challenged the United States Coast Guard Academy to tender appointments to Black high school students. London Steverson was one of the Black student to be offered such an appointment, and when he accepted the opportunity to be part of the class of 1968, he became the second African American to enter the previously all-white military academy. On June 4, 1968 Steverson graduated from the Coast Guard Academy with a BS degree in Engineering and a commission as an ensign in the U.S. Coast Guard.
In 1974, while still a member of the Coast Guard, Steverson entered The National Law Center of The George Washington University and graduated in 1977 with a Juris Doctor of Laws Degree.

USCG Assignments.
Steverson's first duty assignment out of the Academy was in Antarctic research logistical support. In July 1968 he reported aboard the Coast Guard Cutter (CGC) Glacier [2] (WAGB-4), an icebreaker operating under the control of the U.S. Navy, and served as a deck watch officer and head of the Marine Science Department. He traveled to Antarctica during two patrols from July 1968 to August 1969, supporting the research operations of the National Science Foundation's Antarctic Research Project in and around McMurdo Station. During the 1969 patrol the CGC Glacier responded to an international distress call from the Argentine icebreaker General SanMartin, which they freed.
He received another military assignment from 1970 to 1972 in Juneau, Alaska as a Search and Rescue Officer. Before being certified as an Operations Duty Officer, it was necessary to become thoroughly familiar with the geography and topography of the Alaskan remote sites. Along with his office mate, Ltjg Herbert Claiborne "Bertie" Pell, the son of Rhode Island Senator Claiborne Pell, Steverson was sent on a familiarization tour of Coast Guard, Navy and Air Force bases. The bases visited were Base Kodiak, Base Adak Island, and Attu Island, in the Aleutian Islands.[3]
Steverson was the Duty Officer on September 4, 1971 when an emergency call was received that an Alaska Airlines Boeing 727 airline passenger plane was overdue at Juneau airport. This was a Saturday and the weather was foggy with drizzling rain. Visibility was less than one-quarter mile. The 727 was en route to Seattle, Washington from Anchorage, Alaska with a scheduled stop in Juneau. There were 109 people on board and there were no survivors. Steverson received the initial alert message and began the coordination of the search and rescue effort. In a matter of hours the wreckage from the plane, with no survivors, was located on the side of a mountain about five miles from the airport. For several weeks the body parts were collected and reassembled in a staging area in the National Guard Armory only a few blocks from the Search and Rescue Center where Steverson first received the distress broadcast.[4]. Later a full investigation with the National Transportation Safety Board determined that the cause of the accident was equipment failure.[5]
Another noteworthy item is Steverson's involvement as an Operations Officer during the seizure of two Russian fishing vessels, the Kolevan and the Lamut for violating an international agreement prohibiting foreign vessels from fishing in United States territorial waters. The initial attempts at seizing the Russian vessels almost precipitated an international incident when the Russian vessels refused to proceed to a U. S. port, and instead sailed toward the Kamchatka Peninsula. Russian MIG fighter planes were scrambled, as well as American fighter planes from Elmendorf Air Force Base before the Russian vessels changed course and steamed back to Anchorage, where a U.S. Attorney was waiting to prosecute the vessels for the violations of fishing treaties.
Because of his icebreaker experience, Steverson was later made the Seventeenth District's first Ice Operations Officer. With the increased activity at Point Barrow and on the North Slope of Alaska brought on by the discovery of the vast oil reserves, more Coast Guard icebreakers were making patrols North of the Bering Sea, where icebreaking is necessary.
The Coast Guard did not have a separate Judge Advocate General's Corp (JAG). Coast Guard lawyers were called "legal specialists". These law specialists were line officers and could rotate out of the regular legal billets. Frequently these tours of duty out of specialty were in law related areas. Steverson served one such four year tour of duty as the Chief Marine Investigating Officer for the Marine Inspection Office in Battery Park, New York from 1982 to 1986. This job was similar to that of a city prosecutor. With a staff of ten investigating officers, he would investigate marine disasters for negligence and causes of action. Any marine personnel found to have violated a marine safety law would be charged and tried before a Coast Guard administrative law judge at the World Trade Center. In the case of a major marine disaster with multiple loss of life, a formal Board of Inquiry would be convened under the direction of the National Transportation Safety Board (NTSB). These Inquiries often would result in promulgation of new marine safety regulations under Title 46 Code of Federal Regulations (CFR). One such incident was the Case of The Joan LaRie III, a charter fishing vessel that sank of the coast of New Jersey on October 24, 1982. [6][7][8]

MINORITY RECRUITING.
In July 1972 Steverson was reassigned from Alaska to Washington, D.C. to become the Chief of the newly formed Minority Recruiting Section of the USCG, and was charged with working toward desegregating the nearly all-white USCG, starting with the United States Coast Guard Academy.
From 1876 until 1962 the Academy had not admitted any African-American cadets. One graduated in 1966, two graduated in 1968 (including Steverson) and one graduated in 1970. After that none were admitted until Steverson was placed in charge of the national recruiting effort. As the second minority cadet to enter and graduate from this institution, Steverson had obvious expertise in this endeavor.
He traveled the country looking for qualified minority high school students who could compete for admission. Since the Coast Guard Academy is the only one of the United States military academies that does not require a Congressional appointment, and admission is strictly on the basis of the Scholastic Aptitude Test with additional consideration of extra-curricular involvement, minority applicants stood a better chance of being admitted to the Coast Guard Academy than to Annapolis, West Point or the Air Force Academy.
His efforts were rewarded in 1973 when 28 Black cadets were sworn into the Class of 1977, and again in 1974 when 20 Black cadets were admitted as part of the Class of 1978. It was from these cadets that the Coast Guard's first African-American officers of flag rank were to come in the 1990s; officers such as Admiral Joseph Jones, Admiral Errol Brown and Admiral Manson K. Brown.
While Lieutenant Steverson was charged first and foremost with recruiting cadets for the Academy (because that is where the bulk of the career officers would come from), he was also requested to find minority college graduates who were willing receive direct commissions as lawyers and as aviators. These officers were already college graduates and had no need to attend the four year Academy, instead received a three month orientation at the Coast Guard Officer Training Center. He recruited several people from the Vanderbilt University Law School.
After serving two years in this position, he was replaced by the Academy's first graduate from Guam, Juan Tudela Salas.

Law
He next worked as a Law Specialist in the 12th Coast Guard District Office, San Francisco, California and as an Assistant U. S. Attorney for the collection of Civil Penalties under the Federal Boating Safety Act from 1979 to 1982. An Assistant District Legal Officer, he was required to defend as well as prosecute military members who had been charged with violations of the Uniform Code of Military Justice. Occasionally he was asked to represent other officers in administrative actions involving sexual harassment and discrimination. One such case was the Case of Christine D. Balboni against the Department of Transportation and the United States Coast Guard (DOT Case No. 82-177). Ensign Balboni was one of the first female graduates of the Coast Guard Academy. She graduated in the Class of 1981 and was assigned to the Coast Guard Cutter RUSH, a high endurance law enforcement vessel stationed in Alameda, California. She filed a formal complaint of sexual harassment against three senior officers on board the RUSH. She alleged that false special fitness reports had been written concerning her and that the captain of the ship had requested her immediate transfer off the ship long before her normal rotation date. After no other lawyer would take her case, Commander Ronald Mathews, Chief of The 12th District Legal Office, assigned Lieutenant Commander Steverson to represent Ensign Balboni in a formal departmental administrative hearing before a federal administrative law judge. The charges made by Ensign Balboni were determined to be valid. The relief granted was to have the false special fitness reports removed from her service record and destroyed. She was promoted to the next higher rank. Her career was saved. No disciplinary action was taken against the offending officers.[10][11]
He became the Chief of the Investigating Division at the Marine Inspection Office New York City. In 1986 he was detailed to the National Narcotics Border Interdiction System under the Office of Vice President at the time, George H. W. Bush.
When he retired in June 1988 he became the first African-American Coast Guard Academy graduate to retire as a regular line office from the service, and held the rank of Lieutenant-Commander during his last 10 years of service.
He retired to Dumont, New Jersey and practiced law in New York, with a focus on family law and defending Coast Guardsmen accused of federal crimes. He is a member of the New York State, New York City, and Tennessee Bar Associations.
In July 1990 he was appointed a federal administrative law judge by President George W. Bush. He was assigned to the Ninth Region of the Social Security Office of Hearings and Appeals in California. [12]
In April 2009 he retired from his United States Administrative Law Judge Appointment. He devoted himself to philanthropic endeavors. The Steverson Collection at www.ekmk.hu and the Steverson Collection Book Club were his major attempts to improve literacy and to spread American culture in the non-English speaking countries of Europe.

Awards.
The Cultural Diplomacy Award was given to Judge Steverson in April 2009 by the United States Ambassador to Hungary for helping create "a foundation of trust" with the people, which can be built on to reach political, economic, and military agreements; and that combats the notion that Americans are shallow, violent, and godless. He helped to affirm that Americans have such values as family, faith, and the desire for education in common with others; he helped to create a relationship with the people, which will endure beyond changes in government; he helped to reach influential members of the society, who could not be reached through traditional diplomatic functions; and, he donated a large collection of new, used, and rare English books to the American Corners of Hungary.
The State Department Cultural Diplomacy Award is designed to honor distinguished representatives of American culture whose efforts and artistry advance America's goals of mutual understanding and the deepening of friendship between the United States and others.
Since his appointment by President George H. W. Bush in 1990 as federal administrative judge to the Ninth Region of the Social Security Office of Hearings and Appeals, Judge Steverson and family have resided in Downey City, CA, where he was president of the Downey Sister City Association for seven years, and an International Peace Ambassador.

See also
Black Cadets at the Coast Guard Academy
[edit] References
^ Truman Library - Executive Order 9981
^ http://www.laesser.org/joomla/index.php?option=com_content&task=view&id=90&Itemid=38
^ Attu Homepage
^ DCA72AZ003
^ Aviation Disasters Crashes
^ http://www.uscg.mil/hq/g-m/moa/boards/joanlerie.pdf
^ http://www.webandwire.com/coast%20guard%20casualties.htm
^ Missing Body Is Found In Jersey Boat Sinking - New York Times
^ http://www.offisland.com/armedsalas.html Info about Juan Tudela Salas
^ Transitions - The Mason Spirit - George Mason University
^ Search Results - THOMAS (Library of Congress)
^ http://photos1.blogger.com/blogger/7862/2758/320/AljOmaha35630520.jpg
[edit] External links
Integration of the Armed Forces 1940-1965, chapter 20 Limited Response to Discrimination - includes info about President John F. Kennedy's personal involvement with the first attempts to desegregate the USCG Academy, which was a direct cause of LondonSteverson's admission into the Academy.
USCG history page - See of this page starting with caption for picture of the Lamut (about 2/3 the way down the page).
Photo of the judge in robes on the bench
http://photos1.blogger.com/blogger/7862/2758/1600/JudgePortraitDSC03584.jpg
http://photos1.blogger.com/blogger/7862/2758/320/AljOmaha35630520.jpg
http://home.comcast.net/~uscgacademy/london.html

Americans Have A Constitutional Right To Lie.

2010-08-18T20:58:00.000-07:00

PASADENA, Calif.(AP) A three-year-old federal law that makes it a crime to falsely claim to have received a medal from the U.S. military is unconstitutional, an appeals court panel in California ruled 17 August 2010.

The decision involves the case of Xavier Alvarez of Pomona, Calif., a water district board member who said at a public meeting in 2007 that he was a retired Marine who received the Medal of Honor, the nation's highest military decoration.

Alvarez was indicted in 2007. He pleaded guilty on condition that he be allowed to appeal on First Amendment grounds. He was sentenced under the Stolen Valor Act to more than 400 hours of community service at a veterans hospital and fined $5,000.

A panel of the 9th U.S. Circuit Court of Appeals sided with him in a 2-1 decision Tuesday 17 August, agreeing that the law was a violation of his free-speech rights. The majority said there's no evidence that such lies harm anybody, and there's no compelling reason for the government to ban such lies.

The dissenting justice insisted that the majority refused to follow clear Supreme Court precedent that false statements of fact are not entitled to First Amendment protection.

The act revised and toughened a law that forbids anyone to wear a military medal that wasn't earned. The measure sailed through Congress in late 2006, receiving unanimous approval in the Senate.

Dozens of people have been arrested under the law at a time when veterans coming home from wars in Afghanistan and Iraq are being embraced as heroes. Many of the cases involve men who simply got caught living a lie without profiting from it. Almost all the impostors have been ordered to perform community service.

The U.S. Attorney's Office in Los Angeles said it was deciding whether to appeal Tuesday's ruling.

Rule of Law or Rule of Men?

2010-08-09T12:50:00.000-07:00

Is America still a nation of laws where the Rule of Law governs, or do the facts now govern? Do the appellate courts now focus on the facts and ignore the law?

Prop 8 Judge's Personal Life Debated After Ruling
(by Lisa Leff, AP, Aug. 6, 2010, SF, Ca.)
-- The federal judge who overturned California's same-sex marriage ban this week is a Republican who once came under fire for his membership to a powerful all-male club that had only recently allowed Blacks to join.

But after Chief U.S. Judge Vaughn Walker struck down the voter-approved ban known as Proposition 8, he became something else in the minds of some: a gay activist.

Rumors have circulated for months that Walker is gay, fueled by the blogosphere and a San Francisco Chronicle column that stated his sexual orientation was an "open secret" in legal and gay activism circles.

Walker himself hasn't addressed the speculation, and he did not respond to a request for comment by The Associated Press. Lawyers in the case, including those defending the ban, say the judge's sexuality - gay or straight - was not an issue at trial and will not be a factor on appeal.

Judge Vaughn R. Walker is the U.S. Chief Judge for the Northern California district.

But that hasn't stopped a public debate that exploded in the wake of the 66-year-old jurist's ruling. Most of the criticism has come from opponents of same-sex marriage.

"Here we have an openly gay federal judge, according to the San Francisco Chronicle, substituting his views for those of the American people and of our Founding Fathers who, I promise you, would be shocked by courts that imagine they have the right to put gay marriage in our Constitution," said Maggie Gallagher, chairwoman of The National Organization for Marriage, a group that helped fund Proposition 8.

In response, the Gay and Lesbian Victory Fund, a political action committee for gay candidates, launched an online petition accusing Gallagher's group of "gay-baiting."

But the debate raises the question: Why is sexuality different from other personal characteristics judges posses? Can a female judge rule on abortion issues? A Black judge on civil rights?

"The evidence shows that, by every available metric, opposite-sex couples are not better than their same-sex counterparts; instead, as partners, parents and citizens, opposite-sex couples and same-sex couples are equal," Walker wrote in his exacting, 136-page opinion.

Gerard Bradley, a law professor at the University of Notre Dame, published a Fox News column in the hours before Walker filed his opinion faulting the media for not forcing Walker to address his sexual orientation.

And Byran Fischer, issues director for the American Family Association, urged the group's members to contact their congressional representatives about launching impeachment proceedings because Walker had not recused himself from a case in which "his own personal sexual proclivities utterly compromised his ability to make an impartial ruling."

William G. Ross, an expert on judicial ethics and law professor at Samford University in Alabama, said that a judge's sexual orientation has no more relevance to his or her ability to rule fairly on a case involving gay marriage than it would for a deeply religious judge or a judge who had been divorced multiple times.

"Under the logic of the people challenging the judge's fitness to rule on a case involving gay rights because he or she was gay, one would have to find a eunuch to serve on the case, because one could just as easily argue that a heterosexual judge couldn't rule on it either," Ross said.

Months before Walker struck down Proposition 8 as an unconstitutional violation of gay Americans' civil rights, members of the team defending the ban in court had complained about what they perceived as judicial bias.

Over their vigorous objections, Walker pushed to have the proceedings televised live, a plan the U.S. Supreme Court quashed at the last minute. Then, he refused to excuse as a witness a Proposition 8 supporter who had compared gays to child molesters during the 2008 campaign. Lawyers for the two same-sex couples who sued to invalidate the ban had called him as a witness to try to prove the measure was fueled by anti-gay prejudice.

Nevertheless, the defense does not plan to raise the specter of the judge's sexual orientation as they appeal his ruling to the 9th U.S. Circuit Court of Appeals, said Jim Campbell, a lawyer with the defense team.

"The bottom line is this case, from our perspective, is and always will be about the law and not about the judge who decides it," Campbell said. "It's just something that collectively as a legal team we have decided and going up, that's what this case is. The appellate courts are going to focus on the law."

Walker has ruled in at least two other cases involving gay rights issues during his two decades as a judge. In 1999, he rejected arguments from the parents of a San Leandro boy who claimed their religious rights were violated by pro-gay comments their son's teacher had made in the classroom.

In the other case, he dismissed a free speech claim by two Oakland city employees whose managers had confiscated a bulletin board flier for a religious group that promoted "natural family, marriage and family values." The city had "significant interests in restricting discriminatory speech about homosexuals," Walker wrote in his 2005 ruling.

Until this week, though, Walker had come under more criticism for representing the U.S. Olympic Committee in a lawsuit against a gay ex-Olympian who had created the so-called Gay Olympics. Walker won, forcing the Gay Olympics to become the Gay Games. He also aggressively pursued legal fees by attaching a $97,000 lien to the home of the organization's founder while he was dying of AIDS.

Gay activists cried foul, and his appointment to a federal judgeship was delayed for two years in the waning days of Ronald Reagan's presidency.

Civil rights groups also opposed Walker's nomination because of his 15-year membership in the Olympic Club, an all-male athletic club that had only recently admitted its first Black members. California's senior senator at the time, Democrat Alan Cranston, used the club issue to question Walker's fitness for the bench.

Observers usually describe him as a maverick who delights in keeping people guessing. They still are.

On the day of closing arguments in the gay marriage ban case, Walker said it was appropriate that the case was wrapping up in June.

"June, after all, is the month for ... " He let his deep voice trail off, and smiled at the predominantly gay courtroom.

Many froze, wondering if he would refer to the month in which San Francisco celebrates gay pride like Mardi Gras. Would that be a nod to rumors he was gay?

Walker waited a beat longer, savoring the pregnant pause.

"... weddings."

The Life of the Law has Not Been Logic or Common Sense.

2010-07-22T12:59:00.000-07:00

Society is just getting too Lawsuit happy here over “Stupid is what Stupid does”.

It’s time for the annual "Stella Awards"!

For those unfamiliar with these awards, they are named after 81-year-old Stella Liebeck who spilled hot coffee on herself and successfully sued the McDonald's in New Mexico where she purchased the coffee. You remember, she took the lid off the coffee and put it between her knees while she was driving. Who would ever think one could get burned doing that, right?

That's right; these are awards for the most outlandish lawsuits and verdicts in the U.S. You know, the kinds of cases that make you scratch your head. So keep your head scratcher handy.

Here are the Stella's for the 2009:

7TH PLACE :
Kathleen Robertson of Austin, Texas was awarded $80,000 by a jury of her peers after breaking her ankle tripping over a toddler who was running inside a furniture store. The store owners were understandably surprised by the verdict, considering the running toddler was her own son.

6TH PLACE:
Carl Truman, 19, of Los Angeles, California won $74,000 plus medical expenses when his neighbor ran over his hand with a Honda Accord. Truman apparently didn't notice there was someone at the wheel of the car when he was trying to steal his neighbor's hub caps.

Go ahead, grab your head scratcher.

5TH PLACE :
Terrence Dickson, of Bristol, Pennsylvania, was leaving a house he had just burglarized by way of the garage. Unfortunately for Dickson, the automatic garage door opener malfunctioned and he could not get the garage door to open. Worse, he couldn't re-enter the house because the door connecting the garage to the house locked when Dickson pulled it shut. Forced to sit for eight, count 'em, EIGHT, days on a case of Pepsi and a large bag of dry dog food, he sued the homeowner's insurance company claiming undue mental Anguish. Amazingly, the jury said the insurance company must pay Dickson $500,000 for his anguish. We should all have this kind of anguish.

Keep scratching. There are more...

4TH PLACE :
Jerry Williams, of Little Rock, Arkansas, garnered 4th Place in the Stella's when he was awarded $14,500 plus medical expenses after being bitten on the butt by his next door neighbor's beagle - even though the beagle was on a chain in its owner's fenced yard. Williams did not get as much as he asked for because the jury believed the beagle might have been provoked at the time of the butt bite because Williams had climbed over the fence into the yard and repeatedly shot the dog with a pellet gun.

Grrrrr ... Scratch, scratch.

3RD PLACE :
Third place goes to Amber Carson of Lancaster , Pennsylvania because a jury ordered a Philadelphia restaurant to pay her $113, 500 after she slipped on a spilled soft drink and broke her tailbone. The reason the soft drink was on the floor: Ms. Carson had thrown it at her boyfriend 30 seconds earlier during an argument. What ever happened to people being responsible for their own actions ?

Scratch, scratch, scratch. Hang in there; there are only two more Stellas to go...

2ND PLACE:
Kara Walton, of Claymont, Delaware sued the owner of a night club in a nearby city because she fell from the bathroom window to the floor, knocking out her two front teeth. Even though Ms. Walton was trying to sneak through the ladies room window to avoid paying the $3.50 cover charge, the jury said the night club had to pay her $12,000....oh, yeah, plus dental expenses. Go figure.

1ST PLACE:
(May I have a fanfare played on 50 kazoos please?) This year's runaway First Place Stella Award winner was Mr. Merv Grazinski, of Oklahoma City, Oklahoma, who purchased a new 32-foot Winnebago motor home. On his first trip home from an OU football game, having driven onto the freeway, he set the cruise control at 70 mph and calmly left the driver's seat to go to the back of the Winnebago to make himself a sandwich. Not surprisingly, the motor home left the freeway, crashed and overturned. Also not surprisingly, Mr. Grazinski sued Winnebago for not putting in the owner's manual that he couldn't actually leave the driver's seat while the cruise control was set. The Oklahoma jury awarded him, are you sitting down, $1,750,000 PLUS a new motor home. Winnebago actually changed their manuals as a result of this suit, just in case Mr. Grazinski has any relatives who might also buy a motor home.

I guess, we, as a society, getting more stupid...

Greed Is Good. Money Never Sleeps.

2010-07-22T12:11:00.000-07:00

GREED IS IN FULL FORCE AT LOCAL LEVEL IN CALIFORNIA.

The Bleeding Bell blues.................................

City Manager $787,637
Mayor $376,288
Police Chief $457,000
City Council Members $100,000 +
Population 36,637

A protester displays a caricature of Bell Mayor Oscar Hernandez before Monday night’s City Council meeting. Most of the part-time council members get $100,000 a year. The city manager is paid $787,637 a year. July 19, 2010)

Public service means private benefit for the mega-salaried officials in Bell. Angry citizens should put the word 'former' before their titles.

In the newspaper business, when editors are asked what kinds of stories they want to go after, there's a popular two-word answer. The first word is "holy" and the second word is unprintable.

Well, friends, my Times colleagues Ruben Vives and Jeff Gottlieb dug up a genuine "holy [cow]" story in the town of Bell last week, exposing the staggering, colossal, unconscionable salaries that city officials have awarded themselves under the radar of the struggling town's residents.

On Monday, I drove to Bell to see if I could make sense of how it all happened. I parked at City Hall, walked up to the counter and asked to speak to the nearly $800,000-a-year city manager, because I was dying to see what such a specimen looks like.
A clerk dutifully took my name and disappeared. On his salary, Robert Rizzo — or should I say Ratso Rizzo — would surely want to take me out to a nice lunch. Or perhaps pay off my mortgage. He was dumb and arrogant enough, after all, to tell my Times colleagues that if his $787,637 salary was "a number people choke on, maybe I'm in the wrong business. I could go into private business and make that money."

When the clerk returned, she told me Mr. Humility was unavailable.

Maybe he was busy testing the waters in private business, because now that he's been exposed, I'm betting it will get a little hot for old Ratso — and his $376,288 assistant, and the city's $457,000 police chief, and the $100,000 part-time council members. In fact, it already is. Outraged citizens descended on City Hall by the hundreds Monday night demanding that the bums be tossed out on their ears.

"They've awakened a sleeping giant," Denisse Rodarte, a lifelong Bell resident and one of the organizers of the rally, told me in her home a short distance from City Hall.

But why was the giant asleep in the first place, and unaware of the plundering?

Corruption is everywhere in California and beyond, from civic centers to Wall Street. But there's a particular strain of brazen malfeasance in south and southeast L.A. County, with a shameful history of headlines emanating from Maywood and South Gate and Compton and Carson, to name a few. Whether you're talking to residents or think-tank types, you hear some common themes.

Those cities have largely poor, immigrant populations that are too busy working to pay close attention to City Hall, which means they can be easily exploited. Voter turnout is low, in part because many residents are undocumented and even many legal immigrants aren't yet qualified to vote. And there's not much media presence because of cutbacks by everyone in the industry, including The Times, so the rascals are left to steal with impunity.

"It's a very predatory type of mentality," said Cristina Garcia, a Bell Gardens resident who is an adjunct professor at USC.

Garcia, who is now helping organize protests in nearby Bell, said she suspects the vultures deliberately move into cities where they think it'll be easy pickings. Rizzo moved to Bell from Hesperia in 1993 at a salary of $72,000. By 2005, as Vives and Gottlieb reported, he was up to $442,000, and his contract was amended to give him 12% increases annually. The boobs on the City Council, meanwhile, altered the City Charter so they wouldn't have to comply with state guidelines on council salaries.

The cynic in me wonders who's rubbing whose back and what they're getting out of it. And in fact, the L.A. County district attorney is investigating Bell's exorbitant City Council paychecks.

But this may merely be a case of city officials bellying up to the trough and grabbing all they can.

"People get power and it turns to greed," said South Gate Mayor Henry Gonzalez, who was punched by a fellow council member and shot in the head by an unknown assailant back when his town was being ravaged by City Hall thieves in a corruption scandal 10 years ago.

Jaime Regalado of Cal State L.A.'s Edmund G. "Pat" Brown Institute for Public Affairs said officials in southeastern L.A. County have taken advantage of the fact that many immigrant residents aren't shocked by corruption, having come from countries where it's even more blatant.

"But when it hits the press, as it has in Bell, there's the potential for an uprising," Regalado said.

In fact, no one in Bell knew about the inflated salaries before The Times blasted them across Page 1. But that's not because nobody was interested in local affairs, Denisse Rodarte insisted. It's because City Hall was run like the Kremlin.

"We're not ignorant," said Rodarte, a college grad who works in the nonprofit medical field.

Lots of hard-working people care about their community and how it's run, she said. But it's been impossible to get information out of City Hall, whether she was asking about how to volunteer at the food bank or about why, when there's plenty to worry about at home, Bell officials took over some services for nearby Maywood, which has its own history of rotten scoundrels.

Rodarte said residents were mocked and degraded by council members when they protested the Maywood deal, but they're not going to back down again. She's now signed on with the Bell Assn. to Stop the Abuse (or BASTA, which means "enough" in Spanish), and along with Garcia, her ally from Bell Gardens, she's trying to organize such a movement across southeast L.A. County.

All of which brings us back to Bell's city manager, who makes twice as much as President Obama.

Are people choking on that number, Ratso? Yep.

[These guys have written huge pensions into their legal contracts. [approved by the $100,000 @ year city council members ] At least one is for over a million bucks !

Press Is No Longer Free. It Is A Slave To Immoral Journalists.

2010-07-22T11:33:00.000-07:00

The press is no longer a free press. It has become a slave to journalists with no morals and no conscious. They no longer report the news, they manufacture it, manipulate it, spin it. Now that news is a commodity to be bought and sold, it is no longer true or accurate, only sensational, designed to titilate, and inflame the passions. It has become "crack" to the masses, and journalists are worse than "pushers".

New e-mail messages published by the Daily Caller Thursday, July 22, show a coordinated effort by the JournoList's members to destroy Sarah Palin the moment she was named John McCain's running mate on August 29, 2008.
Some even discussed how the former Alaska governor's decision to have a Down Syndrome baby rather than abort it could be used against her.
As the attacks ensued, the Nation's Chris Hayes wrote, "Keep the ideas coming! Have to go on TV to talk about this in a few min and need all the help I can get."
Witness America's so-called journalists conspiring to destroy a woman most of the nation had not even heard of yet:
Ryan Donmoyer, a reporter for Bloomberg News who was covering the campaign, sent a quick thought that Palin's choice not to have an abortion when she unexpectedly became pregnant at age 44 would likely boost her image because it was a heartwarming story.
"Her decision to keep the Down's baby is going to be a hugely emotional story that appeals to a vast swath of America, I think," Donmoyer wrote.
Politico reporter Ben Adler, now an editor at Newsweek, replied, "but doesn't leaving sad baby without its mother while she campaigns weaken that family values argument? Or will everyone be too afraid to make that point?"
Will everyone be too afraid to make that point? This man is currently the National Editor of Newsweek.com!
But there's more:
Ed Kilgore, managing editor of the Democratic Strategist blog, argued that journalists and others trying to help the Obama campaign should focus on Palin's beliefs. "The criticism of her really, really needs to be ideological, not just about experience. If we concede she's a ‘maverick,' we will have done John McCain an enormous service. And let's don't concede the claim that [Hillary Clinton] supporters are likely to be very attracted to her," Kilgore said. [...]
Suzanne Nossel, chief of operations for Human Rights Watch, added a novel take: "I think it is and can be spun as a profoundly sexist pick. Women should feel umbrage at the idea that their votes can be attracted just by putting a woman, any woman, on the ticket no matter her qualifications or views."
Mother Jones's [Jonathan] Stein loved the idea. "That's excellent! If enough people - people on this list? - write that the pick is sexist, you'll have the networks debating it for days. And that negates the SINGLE thing Palin brings to the ticket," he wrote.
Another writer from Mother Jones, Nick Baumann, had this idea: "Say it with me: ‘Classic GOP Tokenism'."
Wow! If enough people on this list write that the pick is sexist, you'll have the networks debating it for days.
Getting a sense of just how much control these folks had over the news cycle?
Now enter Time's Joe Klein:
"We're reporting that she actually supported the bridge to nowhere. First flub?" [...]
Time's Joe Klein then linked to his own piece, parts of which he acknowledged came from strategy sessions on Journolist. "Here's my attempt to incorporate the accumulated wisdom of this august list-serve community," he wrote. And indeed Klein's article contained arguments developed by his fellow Journolisters.
It sure did:
--Does the McCain campaign actually think that Hillary supporters will be lured to the ticket by a militant pro-lifer who also believes in the teaching of intelligent design?
--Palin exploded her state's coffers by imposing a windfall profits tax on the oil companies...sort of--no, exactly--like the proposal Barack Obama has made and John McCain has attacked. Apparently, she also supported the Bridge to Nowhere, despite her disclaimer at today's event. So how does McCain explain putting a tax-raising porker on his ticket?
This kind of coordinated attack by journalists should really be offensive to folks on both sides of the aisle.
The need for an independent press is essential to our democracy. That so many members of the media took ideas from one another as to how to sabotage a politician is disgraceful.
As Rush Limbaugh wrote me yesterday:
These people and their tactics are not new, we've seen them before in other countries and other times. They want to destroy contrary and opposition voices and views. They will climb over the law and the people to achieve their aims...They are all the same. They are leftists, disguised as lawyers, judges, scholars, professors, teachers, reporters, anchors, senators, representatives, legislative aids, congressional staff, federal bureaucrats, etc. There is NO Media. We know that now. There is just an incestuous relationship among all these various groups and a revolving door connecting them all.
Indeed.
In the last few days thanks to the Daily Caller, we have learned that the folks on this list acted to bury the Jeremiah Wright story in the spring of 2008, plotted to destroy Palin that fall, and then celebrated when their candidate Barack Obama won the election.
Think there really is a free and independent press anymore?
(Noel Sheppard)
Well you had better think again, and think real hard.

The Obama Administration fired Shirley Sharrod based on a doctored video on Fox News.
WASHINGTON – President Barack Obama has conveyed "his regret" to former Agriculture Department official Shirley Sherrod over her ouster in the midst of a racially-tinged firestorm, the White House said Thursday July 21, 2010.
"The president told Ms. Sherrod that this misfortune can present an opportunity for her to continue her hard work on behalf of htose in need," the statement said, "and he hopes that she will do so."
Sherrod was forced to resign by her superiors earlier this week after a conservative blogger posted an edited video of her recalling her reluctance 24 years ago to help a white farmer seeking government assistance. She says the posting took her speech out of context.
The statement from press secretary Robert Gibbs' office came at midday Thursday and followed a host of nationally broadcast interviews that Sherrod had given earlier in the day. From network to network, she said she wanted to talk to Obama about her wretched week. But also said she felt there was no need for him to apologize to her, as Gibbs and Agriculture Secretary Tom Vilsack had earlier.
The White House said that Obama called Sherrod at midday Thursday, July 22, hours after her television interviews.
For her part, the veteran government employee reiterated that she was uncertain whether she would accept Vilsack's invitation to be reinstated to his department, saying she had to think it over.
The White House statement said, "The president expressed to Ms. Sherrod his regret about events of the last several days. He emphasized that Secretary Vilsack was sincere in his apology yesterday, and in his work to rid USDA of discrimination."
A White House official said that Sherrod did not indicate to the president whether she would accept the job she has been offered at the Agriculture Department. The president tried to reach her twice on Wednesday night but was unable to leave a message, said the official, who spoke on condition of anonymity to discuss behind-the-scenes details.

Old Judges Never Die; They Just Lose Their Appeal.

2010-06-24T09:34:00.000-07:00

(To be continued.)

Justice Souter Retiring So He Can Read.

2010-04-18T12:49:00.000-07:00

Robert Bork once said serving on the Supreme Court would be “an
intellectual feast.”

By contrast, Justice David Souter
said he undergoes a “sort of annual intellectual lobotomy” when the
Supreme Court term begins in October, a condition that he said lasts
until the end of the term the following summer.

It was an offhand remark by Souter, made in service of a larger point
before an audience of the American Academy of Arts & Sciences in D.C.:
that Americans need to develop a “habit of mind” that includes reading
books – which, he implied, becomes very hard for him to do during the
bustle of a Supreme Court term. “I cram what I can into the
summertime,” Souter said.

Without making too much of it, Souter’s comment opened an interesting
window into his thinking about his job – and why conventional wisdom
has it that he is considering leaving the Court soon to repair to his
New Hampshire home. If he thinks of his work on the Court, even
sarcastically, as a nine-month-long, brain-evacuating experience, it
is easier to see why he would want to leave it behind – if nothing
else, to catch up on his reading.

It was a rare public outing for the reclusive justice, but he was at
ease, and among friends; he has been a fellow of the academy since
1997.(View the discussion at this C-SPAN site.) Souter spoke on a
panel discussing the role of humanities in civic life, with a special
focus on how to make the case for humanities education and for the
importance of humanities in general in the current economic and
political climate. Souter was joined by Patty Stonesifer, chair of the
Smithsonian Institution’s Board of Regents, Don Randel, president of
the Andrew W. Mellon Foundation, and Edward Ayers, president of the
University of Richmond, with Leslie Berlowitz, CEO of the American
Academy moderating.

Souter made a strong pitch for the necessity of learning history, in
part as “an antidote to cynicism about the past.” As an example, he
discussed how differently the justices who decided Plessy v. Ferguson
(in favor of racially separate facilities) viewed segregation from
those who decided Brown v. Board of Education against separate but
equal schools. Only by learning the historical context of both
decisions, Souter said, can the Plessy decision be understood.

During a question-and-answer period, Souter was expansive with advice,
though he cautioned against following it. As he was about to suggest
ways to advocate for humanities before Congress, Souter noted that he
has long been on the “judicial salary committee” urging raises for
judges, without any success. “Whatever I tell you, do the opposite.”

Souter said that during a conference on judicial independence at
Georgetown University Law Center led by Justices Sandra Day O’Connor
and Stephen Breyer two years ago, he learned that the problem was not
just that the public is ignorant about how the judiciary works. “The
problem is one of pervasive ignorance about government.” Taking a
civics class when he was a child, Souter said, was “dull as ditch
water,” but absolutely necessary – and only 50 percent of students
today take civics. Souter’s point appeared to be that “holding the
humanities tin cup” was not a narrow plea but a campaign to improve
all branches of education.

That led Souter to his discussion of the need for a “habit of mind”
that includes reading, intellectual curiosity, and self-doubt. He
ended by noting that the legendary jurist Learned Hand, quoting Oliver
Cromwell, the 17th century British leader, once said these words
should appear above the entrance of all schools, courthouses, and
public buildings: “Consider That Ye May Be Wrong.”

Supreme Court Justice Souter Loves To Read.

2010-04-18T12:46:00.000-07:00

Supreme Court Justice David Souter is planning to retire at the end of
the current court term.

The vacancy will give President Obama his first chance to name a
member of the high court and begin to shape its future direction.

At 69, Souter is nowhere near the oldest member of the court. In fact,
he is in the younger half of the court's age range, with five justices
older and just three younger. So far as anyone knows, he is in good
health. But he has made clear to friends for some time that he wanted
to leave Washington, a city he has never liked, and return to his
native New Hampshire. Now, according to reliable sources, he has
decided to take the plunge and has informed the White House of his
decision.

Factors in his decision no doubt include the election of President
Obama, who would be more likely to appoint a successor attuned to the
principles Souter has followed as a moderate-to-liberal member of the
court's more liberal bloc over the past two decades.

In addition, Souter was apparently satisfied that neither the court's
oldest member, 89-year-old John Paul Stevens, nor its lone woman, Ruth
Bader Ginsburg, who had cancer surgery over the winter, wanted to
retire at the end of this term. Not wanting to cause a second vacancy,
Souter apparently had waited to learn his colleagues' plans before
deciding his own.

Given his first appointment to the high court, most observers expect
Obama will appoint a woman, since the court currently has only one
female justice and Obama was elected with strong support from women.
But an Obama pick would be unlikely to change the ideological makeup
of the court.

Souter was a Republican appointed by President George H.W. Bush in
1990, largely on the recommendation of New Hampshire's former Gov.
John Sununu, who had become the first President Bush's chief of staff.

But Souter surprised Bush and other Republicans by joining the court's
more liberal wing.

He generally votes with Stevens and the two justices who were
appointed by President Bill Clinton — making up the bloc of four more
liberal members of the court, a group that has usually been in the
minority throughout Souter's tenure.

Possible nominees who have been mentioned as being on a theoretical
short list include Elena Kagan, the current solicitor general who
represents the government before the Supreme Court; Sonia Sotomayor, a
Hispanic judge on the U.S. Court of Appeals for the Second Circuit;
and Diane Wood, a federal judge in Chicago who taught at the
University of Chicago at the same time future President Barack Obama
was teaching constitutional law there.

President Obama's choice has an excellent chance of being confirmed by
the U.S. Senate, where Democrats now have an advantage of 59 seats to
the Republicans' 40.

By the time a vote on a successor is taken, the Senate is anticipated
to have a 60th Democrat, as the Minnesota Supreme Court is expected to
approve the recount that elected Democrat Al Franken over incumbent
Republican Norm Coleman in that state.

Souter was a graduate of both Harvard College and Harvard Law School.
He also attended Magdalen College at Oxford University in England. But
his academic pedigree was only one reason he had been regarded as a
thinking man's jurist and a highly thoughtful conservative prior to
his elevation to the nation's highest bench.

Once appointed and confirmed, he soon became a "surprise justice." He
bucked the expectation that he would join the court's conservative
wing — then led by Chief Justice William Rehnquist, who was appointed
to the court by President Nixon and elevated to chief by President
Reagan, and featuring Reagan appointees Antonin Scalia and Anthony
Kennedy.

The appointing president had been assured of Souter's credentials by
the White House chief of staff, John Sununu, who had known Souter as a
conservative member of the New Hampshire Supreme Court when Sununu was
that state's Republican governor.

But when confronted by the ideological debates and partisan landscape
of Washington, Souter surprised both Sununu and Bush by aligning
himself with the court's more moderate wing, which also included
Reagan appointee Sandra Day O'Connor.

Later on, Souter became a full-fledged member of the court's
unabashedly liberal caucus, featuring yet another Republican, John
Paul Stevens (appointed by President Ford in 1975), who remains a
member of the court to this day.

Souter was unconventional in other ways beyond his ideological
independence. He moved to Washington to attend court sessions, but he
returned to his beloved roots in New Hampshire whenever possible,
including for the court's long summer hiatus each year.

Rather than fly home, Souter preferred to drive. He also resisted
other forms of contemporary technology and convenience, holding out
against the cell phone and e-mail and continuing to write his opinions
and dissents in longhand, using a fountain pen.

Once engaged but never married, Souter was once listed among the
capital's 10 "most eligible bachelors" but remained in that category
of "confirmed bachelors."

He was never a creature of the capital city's social scene, living in
a spartan apartment in the city not far from the Supreme Court offices
on Capitol Hill. Although he served nearly two decades on the high
court, he made no secret of his preference for the lifestyle and pace
of his native rural New Hampshire.

Suits & Sentences.

2010-04-14T05:17:00.000-07:00

"Suits & Sentences" is a legal affairs blog written by Michael Doyle, a reporter for McClatchy's Washington Bureau. He was a Knight Journalism Fellow at Yale Law School, where he earned a Master of Studies in Law; he also earned a Masters in Government from The Johns Hopkins University with a thesis on the Freedom of Information Act. He teaches journalism as an adjunct instructor at The George Washington University's School of Media and Public Affairs.

Read more: http://blogs.mcclatchydc.com/law/2010/04/coast-guard-academy-sexs-lands-cadet-in-jail.html#ixzz0l4nMi25x

Coast Guard Academy sexs lands one cadet in jail, another skates.

SR was a cadet at the U.S. Coast Guard Academy. She had sex with an enlisted man during the summer of 2005, which is contrary to military regulations. Then she lied about it.
But she's not the one in with a crushed life.
Instead, as spelled out in a new opinion by the U.S. Court of Appeals for the Armed Forces, SR was the sole witness testifying against former Cadet Webster M. Smith. Her testimony got Smith convicted in 2006 on three sexual misconduct charges. Smith was sentenced to six months incarceration and dismissal from the service.
While stationed at the Little Creek base in Norfolk, Smith began hearing rumors that SR had had an "indiscretion." SR first told him she had non-consensual sex with an enlisted man; later, when the rumors persisted, SR acknowledged the sex was both consensual and more extensive than she first indicated. Smith responded that:
"He would continue to try to suppress the rumors, but that he needed motivation to do so. (Smith) denied he was seeking sexual favors but suggested the couple take a photograph of themselves naked together to build 'trust in one another.' After the photo, (Smith) left but returned to her room later that evening."
Then, he performed cunnilingus on her and she performed fellatio on him. The opinion is more explicit than that.
Here was the question: should Smith have been permitted to raise the specifics of SR's "indiscretion," as evidence that she had a habit of lying about sexual encounters?
The appellate court in its divided March 29 opinion thought not, reasoning that "while Cadet SR’s credibility was in contention, it is unclear why the lurid nuances of her sexual past would have added much to (Smith's) extant theory of fabrication."
Two dissenters countered that the inability to specify SR's sexual past hurt Smith's defense, stating that "with this limited information about SR’s secret, the members were left to speculate whether the secret was a minor disciplinary infraction or a more serious charge, but they had no idea that the proffered evidence directly implicated SR’s motive and credibility."
Smith was the first cadet to be court martialed in the Coast Guard Academy's history.
Posted by Mike Doyle at 10:29 AM | Permalink
Technorati Tags: Coast Guard Academy, U.S. Court of appeals for the armed forces.

Week After Webster Smith Debacle, CAAF Delivers Unanimous Decision.

2010-04-07T18:28:00.000-07:00

One week after the decision in the Webster Smith Case, the Court of Appeal for the Armed Forces (CAAF) proved that they were capable of reaching a unanimous, 5-0, decision in a criminal case where the charges involve sexual misconduct with a white female. However, the accused was not Black. This was a reversal; the guilty verdict was set aside; and the charge and specification were dismissed.

UNITED STATES, Appellee
v.
James W. SUTTON, Technical Sergeant
U.S. Air Force, Appellant
No. 09-0458
Crim. App. No. 37155
United States Court of Appeals for the Armed Forces
Argued January 12, 2010
Decided April 6, 2010

ERDMANN, J., delivered the opinion of the court, in which
EFFRON, C.J., and BAKER, STUCKY, and RYAN, JJ., joined.

Counsel
For Appellant: Daniel Conway, Esq.

For Appellee: Captain Joseph J. Kubler

Military Judge: Timothy D. Wilson

This opinion is subject to revision before final publication.
United States v. Sutton, No. 09-0458/AF
2
Judge ERDMANN delivered the opinion of the court.
Technical Sergeant James W. Sutton was convicted at a
contested general court-martial of one specification of
soliciting his step-daughter to engage in indecent liberties, in
violation of Article 134, Uniform Code of Military Justice
(UCMJ), 10 U.S.C. § 934. He was sentenced to a reduction to E-
4, three months of hard labor without confinement, and a badconduct
discharge. The convening authority approved the
sentence and the United States Air Force Court of Criminal
Appeals affirmed the findings and sentence. United States v.
Sutton, No. ACM 37155, 2009 CCA LEXIS 39, 2009 WL 289806 (A.F.
Ct. Crim. App., Jan. 29, 2009) (unpublished).
“A specification states an offense if it alleges, either
expressly or by implication, every element of the offense, so as
to give the accused notice and protection against double
jeopardy.” United States v. Crafter, 64 M.J. 209, 211 (C.A.A.F.
2006) (citations omitted). We granted review to determine
whether a specification which alleges that the appellant
solicited his step-daughter to commit the offense of indecent
liberties with a child by asking her to lift her shirt to show
him her breasts states an offense.1 We hold that the
1 We granted review of the following issues:
I. Whether the military judge erred in denying the
defense motion to suppress Appellant’s oral and
written statements based on a violation of Article 31,
UCMJ.
United States v. Sutton, No. 09-0458/AF
3
specification as drafted in this case fails to state an offense
and therefore dismiss the charge and its specification. 2
BACKGROUND
In December 2005 Sutton was wrestling on his bed with his
two step-daughters, P.S. and H.S., while his wife, the
children’s mother, was not at home. After asking H.S. to leave
the room, Sutton asked P.S., then ten years of age, to lift her
shirt. P.S. shook her head, indicating she would not, and hid
her face in her stuffed animal. P.S. did not immediately report
the incident. Several days later while the family was shopping
at Wal-Mart, P.S. became upset and, for the first time, informed
her mother that Sutton had asked her to lift her shirt and also
said that he had offered her $20.00.3 Mrs. Sutton confronted
Sutton about the incident and testified that he admitted asking
P.S. to show him her chest and offered her money to do so.
Mrs. Sutton later reported her daughter’s statements to an
on-base chaplain. The chaplain contacted the Air Force Office
of Special Investigations (OSI), which initiated an
II. Whether the facts charged in the specification are
sufficient as a matter of law to support a charge for
solicitation of indecent liberties with a child under
Article 134, UCMJ, where the person solicited was that
child.
United States v. Sutton, 68 M.J. 201 (C.A.A.F. 2009) (order
granting review). 2 Since our decision on Issue II is dispositive of the case, we
do not address Issue I.
United States v. Sutton, No. 09-0458/AF
4
investigation the same day. OSI contacted the Tom Green County
(Texas) District Attorney’s Office for assistance in the
investigation. Upon completion of the civilian investigation,
Sutton was indicted in Texas state court on one count of
indecency with a child by exposing his genitals to P.S., and one
count of criminal solicitation of a minor by asking P.S. to
expose her breasts. The criminal solicitation count was
withdrawn by the state on legal grounds after the defense filed
a motion to quash that count,4 and the state proceeded to trial
on the single indecency count. During the trial on the
indecency count P.S. recanted her earlier statements that Sutton
had exposed his genitals to her and he was subsequently
acquitted of that charge.
Sutton was then charged by military authorities under
Article 134, UCMJ, as follows:5
TECHNICAL SERGEANT JAMES W. SUTTON . . . did, at or
near the State of Texas, between on or about 1
December 2005 and on or about 1 February 2006,
wrongfully solicit his dependant step-daughter, [PS],
a female under 16 years of age, not the wife of the
accused, to engage in indecent liberties by asking her
to lift her shirt and show him her breasts for $20.00,
3 At the court-martial, P.S. testified that Sutton asked her to
lift her shirt, but denied that he offered her money. 4 Count 2 of the indictment alleged that Sutton solicited P.S. to
expose her breasts. Tex. Penal Code Ann. § 21.11 (indecency
with a child) requires exposure of a child’s anus or genitals
but does not include exposure of the breast. 5 Sutton was also charged under Article 134, UCMJ, with
possessing visual depictions of minors engaging in sexually
explicit conduct. That specification was dismissed and is not
at issue in this appeal.
United States v. Sutton, No. 09-0458/AF
5
or words to that effect, with intent to gratify the
lust of the accused.
Sutton’s defense counsel filed a motion to dismiss the
specification for failure to state an offense. The defense,
relying at least in part on the prior Texas court ruling in
Sutton’s case, argued that asking a child to expose her breasts
was not a crime. The Government responded that based on MCM pt.
IV, para. 87.c(2) (2005 ed.), the offense was properly charged
as indecent liberties with a child as it alleged that Sutton
wrongfully solicited his step-daughter to engage in indecent
liberties, and the conduct brought discredit to the Air Force
and was prejudicial to good order and discipline. The military
judge found that the specification did allege an act and that
act, under the circumstances, was to the prejudice of good order
and discipline in the armed forces or was of a nature to bring
discredit upon the armed forces.
The issue of the sufficiency of the specification arose
once again when the military judge was preparing his
instructions for the panel. The military judge stated that the
wording of the specification raised confusion as to the proper
elements of the offense and questioned whether it was a
mistitled solicitation offense. The military judge specifically
asked trial counsel if the Government intended the charge to be
United States v. Sutton, No. 09-0458/AF
6
indecent liberties under Article 134, UCMJ,6 or solicitation to
commit indecent liberties under either Article 82, UCMJ, 10
U.S.C. § 882, or Article 134, UCMJ. Trial counsel responded
that they had used the word “solicit” in the specification as a
term of art and that they viewed the charge as an indecent
liberties charge under Article 134, UCMJ. Sutton’s defense
counsel strongly disagreed with the Government’s
characterization of the specification. The defense attorneys
argued that the defense had always viewed the charge as a
solicitation to commit indecent liberties and had prepared their
defense on that basis.
The military judge, acknowledging the confusion in the
wording of the specification, stated that Sutton “wasn’t asking
her [P.S.] or soliciting her to commit an offense. If an
offense was committed, it was committed by him, not by her. So
he wasn’t soliciting her to commit an offense.” Ultimately the
military judge decided not to give the solicitation instruction:
because the way I view solicitation as this
instruction is intended, is it’s intended to show the
jury that the accused solicited another person to
commit a crime. That’s not what we have here in the
charge. We don’t have that charged in this case. He
did not solicit, arguably, his stepdaughter, [P.S.] to
commit a crime. He attempted to have indecent
liberties with a child, allegedly, by soliciting her
to do certain things. But, those certain things were
6 As this offense occurred prior to October 1, 2007, the Article
134, UCMJ, offense of “indecent liberties with a child” was
still in force. See MCM, Analysis of Punitive Articles
Applicable to Sexual Assault Offenses Committed Prior to 1
October 2007 app. 27 at A27-3 (2008 ed.).
United States v. Sutton, No. 09-0458/AF
7
not to commit a crime. So consequently, I’m not
giving the solicitation instruction.
After a recess the military judge convened an Article
39(a), UCMJ, 10 U.S.C. § 839(a), session and announced that he
had been informed during the break by trial counsel that it was
the convening authority’s intention to refer the case as an
Article 134, UCMJ, solicitation offense. In view of the
Government’s change of position, and the defense objection to a
proposed instruction on indecent liberties, the military judge
stated that he had changed his mind and would instruct the panel
on “solicitation” under Article 134, UCMJ. The instructions
given to the members set forth the elements and definitions for
solicitation to commit the offense of indecent liberties as the
offense alleged, and the elements and definitions for the
offense of indecent liberties, as the offense Sutton solicited
P.S. to commit.
DISCUSSION
We turn first to Issue II, which is whether the
specification states an offense. As noted, the standard for
determining whether a specification states an offense is whether
the specification alleges “every element” of the offense either
expressly or by implication, so as give the accused notice and
protect him against double jeopardy. Crafter, 64 M.J. at 211;
United States v. Dear, 40 M.J. 196, 197 (C.M.A. 1994); Rule for
Courts-Martial 307(c)(3). “The question of whether a
United States v. Sutton, No. 09-0458/AF
8
specification states an offense is a question of law, which this
Court reviews de novo.” Crafter, 64 M.J. at 211 (citations
omitted). Sutton argues that a solicitation charge requires
that the person solicited be asked to participate in a crime
punishable under the UCMJ and P.S. was not asked to commit a
crime. He notes that under the charged specification, the
victim must necessarily be an accomplice in the crime against
her, a concept that is very confusing. Sutton also notes the
military judge’s statements at trial that “if [the Government]
intended [the charge] to be a solicitation charge, then they
would have a real problem. . . . If an offense was committed, it
was committed by him, not by her. . . . he wasn’t soliciting her
to commit an offense.”
The Government responds that they need only show that P.S.
knew that the solicitation was an invitation to join in a
criminal venture. The Government argues that it does not matter
if P.S. was solicited to commit a crime where she was the
potential victim, and the fact that Sutton asked P.S. to
victimize herself should not decriminalize the solicitation.
Relying on two courts of criminal appeals decisions, the
Government argues that when a child is asked to expose herself
for an adult’s lustful purpose, and that child knows what is
being asked is wrongful, then that child has been solicited to
commit indecent liberties with a child. United States v.
Conway, 40 M.J. 859, 862 (A.F.C.M.R. 1994); United States v.
United States v. Sutton, No. 09-0458/AF
9
Harris, No. NMCCA 9901587, 2003 CCA LEXIS 269, *3 (N-M. Ct.
Crim. App. Nov. 26, 2003) (unpublished).7 We disagree.
In both Conway and Harris, each appellant asked his stepdaughter
to allow him to see her naked. Both were charged with
soliciting their step-daughters to commit indecent liberties
with a child. In affirming the convictions, both decisions
focused on whether the victims knew the request was wrongful
(finding that they did) and whether the solicited conduct
constituted part of a criminal venture. Neither decision,
however, specifically addressed whether it was legally possible
for the victims to commit the offense.
As noted, the specification in question reads as follows:
Specification 1: TECHNICAL SERGEANT JAMES W. SUTTON
. . . [d]id, at or near the State of Texas, between on
or about 1 December 2005 and on or about 1 February
2006, wrongfully solicit his dependant step-daughter,
[PS], a female under 16 years of age, not the wife of
the accused, to engage in indecent liberties by asking
her to lift her shirt and show him her breasts for
$20.00, or words to that effect, with intent to
gratify the lust of the accused.
The elements of “soliciting another to commit an
offense” under Article 134, UCMJ, are:
(1) That the accused solicited or advised a certain
person or persons to commit a certain offense
under the code other than one of the four
offenses named in Article 82;
7 Both Conway and Harris relied on United States v. Oakley, 7
C.M.A. 733, 23 C.M.R. 197 (C.M.A. 1957), and United States v.
Higgins, 40 M.J. 67 (C.M.A. 1994), however, neither of those
cases dealt with situations in which the individuals solicited
to commit the offense in question were also the victim of that
offense.
United States v. Sutton, No. 09-0458/AF
10
(2) That the accused did so with the intent that the
offense actually be committed; and
(3) That under the circumstances, the conduct of the
accused was to the prejudice of good order and
discipline in the armed forces or was of a nature
to bring discredit upon the armed forces.
MCM pt. IV, para. 105.b (2005 ed.). The first element of
solicitation under Article 134, UCMJ, requires the accused to
solicit another person to commit an offense. Here the
Government alleges that Sutton solicited P.S. to commit the
offense of indecent liberties with a child. The elements of the
Article 134, UCMJ, offense of indecent acts or liberties with a
child are as follows:
(2) No physical contact.
(a) That the accused committed a certain act;
(b) That the act amounted to the taking of
indecent liberties with a certain person;
(c) That the accused committed the act in the
presence of this person;
(d) That this person was under 16 years of age
and not the spouse of the accused;
(e) That the accused committed the act with
the intent to arouse, appeal to, or
gratify the lust, passions, or sexual
desires of the accused, the victim, or
both; and
(f) That, under the circumstances, the conduct
of the accused was to the prejudice of
good order and discipline in the armed
forces or was of a nature to bring
discredit upon the armed forces.
MCM pt. IV, para. 87.b(2) (2005 ed.). The elements of indecent
liberties with a child clearly contemplates two actors, as the
Manual refers to “the accused” and refers to the victim as a
United States v. Sutton, No. 09-0458/AF
11
“certain person” or “this person.” See MCM pt. IV, para.
87.b(2)(b)-(e). In contrast, the specification under which
Sutton was charged presumes P.S. could have committed the act of
indecent liberties with a child on herself.
While the evidence established that Sutton did ask P.S. to
lift her shirt, the act of P.S. lifting her shirt, in this
context, could not constitute the criminal offense of indecent
liberties with a child by P.S.8 Under the factual circumstances
presented here, a charge of indecent liberties with a child
could have alleged that Sutton asked P.S to lift her shirt to
show him her breasts in order to gratify his lust. That,
however, was not the charge and instead the Government chose to
charge Sutton with soliciting P.S. to commit the offense of
indecent liberties with a child. Because P.S. cannot commit the
offense of indecent liberties with a child on herself, the
specification fails to state an offense.
CONCLUSION
The decision of the United States Air Force Court of
Criminal Appeals is reversed. The finding of guilty to the
charge and its specification and the sentence are set aside.
The charge and specification are dismissed.
8 Even if we were to assume that P.S. could be considered an
aider or abettor under Article 77, UCMJ, the charge would still
fail as she did not share in any criminal purpose.

Webster Smith. Are There Loose Cannons At The CAAF?

2010-04-05T04:35:00.001-07:00

The majority opinion was little more than military mumbo-jumbo. After so much jibber-jabber, the majority opinion managed to protect the sacred cow, the white female. Only in America, with its slave history and its slave culture can the best legal minds we have been able to assemble, so far, come to such a warped decision.

The slave culture in America lies just beneath the surface in every interaction between black and white. It is the albatross around the neck of America. It is the unwelcomed guest at every table. As Virginia Gov. Robert F. McDonnell (R) said on 7 Apr 2010 concerning slavery when he issued his proclamation declaring April Confederate History Month "slavery has left a stain on the soul of this state and nation. Slavery was an evil and inhumane practice that deprived people of their God-given inalienable rights and all Virginians are thankful for its permanent eradication from our borders." A little soap and sensitivity training has not been able to wash away this stain. It is a perpetual curse on our institutions.

A 3-2 decision is what I had predicted, but I anticipated that it would be a reversal and not an affirmation. This does nothing to clarify the law on these issues. This does not inspire confidence in their decisions.

I would rather it had been a 5-0 reversal or even a 5-0 affirmation. At least that would have shown that the judges were firmly convinced on the issues and the law. This decision is neither hot nor cold. It is luke-warm. Military justice is not rushing towards certainty nor egalitarian enlightenment, but rather it is sloughing towards gamorrah. What does this say about the evolution of American military justice of the moral progress of race relations in America?

Those who are looking to champion human rights at Guantanamo Bay, Cuba would be better served to look closer to home. Webster Smith might have receiveded more sympathetic attention if he had served his six month prison sentence with the terrorist suspects in Gitmo, Cuba. Those terrorists only wanted to blowup America; they did not want to fraternize with white American girls. They did not set off our slave culture racial polarizing defenses. The terrorists wanted to make war; Webster Smith wanted to make love. The mantra of the 60's, Make love not war, has no currency in the 21st Century.

More than 66 years after the court-martial of Jackie Robinson, military justice is still being used as a weapon against soldiers and sailors of color. Just as the Death Penalty replaced lynching in many Southern States, military justice has come to use due process and military law as a tool to keep Blacks in their place. The slave culture lives on in the hearts and minds of the white military lawyers along with institutionalized racism.

This entire Webster Smith saga has been like a bad dream for the Coast Guard Academy and the Smith family. It has done nothing to advance the relations between Black and white military members. To have watched this episode of Coast Guard history unfold from the midnight abduction of cadet Webster Smith from his cadet barracks to the CAAF decision is like sleep-walking backwards through American history from 1863 towards the Fugitive Slave Laws. That is how slave-catchers used to operate. Blacks are still paying the price for white guilt and white fear.

Webster Smith. What Went Wrong at the CAAF?

2010-04-05T04:31:00.000-07:00

My faith in humanity and the future of military justice is strengthened by one thing. That is that the Chief Judge was in the Dissent. At least, the leader of the Court saw the issues clearly and correctly. I am dissapointed at his apparent lack of leadership. A stronger leader or a more forceful and dynamic personality would have been able to show the majority and the female member the error of their ways.

Chief Justice of the Supreme Court Earl Warren was such a leader. He demonstrated exceptional leadership skills in the handling of the Brown v Board of Education case. That was a unanimous 9-0 Decision at a very turbulent period in American History. Racial tensions were at an all time high in America. Yet, Earl Warren was able to convince the all white Supreme Court to render a decision that would speak with an unequivocal voice. There was no wiggle room. A 9-0 Decision was much more forceful and was much better received than a 8-1, or 7-2, or 6-3, or a 5-4 decision. That was leadership; that was history; that was America during one of her finest hours.

Are there a bunch of loose cannons at the CAAF? Is this a fractured court? Do some of these judges have their own political agenda and their own constituencies? What hidden agendas could they have? What constituencies could they be serving? Are they slaves to their own prejudices? Was Baker clearly the swing vote? Being a female, did that have anything to do with how she perceived the issues? Did the case for her come down to simply a case of black and white?

Did the judges write their own opinions? Did some immature clerk write the decision and the judge merely sign off on it? Was the clerk a first generation American who managed to go from blue-collar to professional in one generation? That is happening quite a lot in America recently. In my discussions with some recent Asian lawyers I am apalled at their lack of understanding and perception when it comes to Civil Rights laws and issues. Also, consider who the chief interpreter of the Patriot Act was. It raised a lot of controversy in middle America and among civil libertarians.
(Cicero said: In time of war, the laws fall silent. In our own era, few proponents of that doctrine have been as influential or forceful as Berkeley law professor John Yoo, who in the wake of the terrorist attacks of September 11, 2001, worked within the Office of Legal Counsel at the Justice Department to lay the legal foundations for the Bush administration's approach to the war on terror. Despite repeated pleas from civil liberties groups, crucial memoranda authored by Yoo, justifying controversial tactics ranging from coercive interrogation to warrantless surveillance, remained closely guarded secrets.)

Chief Judge Effron was clearly right in his analysis. Why could he not get Judges Stucky, Ryan and Baker to see the issues more clearly?

The Webster Smith case signals a low point in military justice, American history, and inter-racial relations. Just when Blacks were beginning to think it was safe to come out of the shadows on American society, white American sends a clear signal and a reminder that Blacks are not welcome.

The Webster Smith Case. Only In America.

2010-04-04T02:21:00.000-07:00

(IN A PERFECT WORLD THIS WOULD HAVE BEEN THE DECISION OF THE COURT. BUT, WE DO NOT LIVE IN A PERFECT WORLD. IT SHOULD HAVE BEEN A UNANIMOUS 5-0 DECISION. Citations have been omitted for ease of reading by laymen.)

ERDMANN, Judge, with whom EFFRON, Chief Judge, joins
(concurring in part and dissenting in part):

(While I concur with the majority opinion as to the
jurisdictional issue raised by the Government, I respectfully
dissent from the majority’s conclusion as to the granted issue.)

In a case where credibility of the complainant was fundamental,
the military judge prevented the defense from presenting to the
panel an explanation of the circumstances that would have
provided a motive for the complainant to make a false allegation
of rape.

{Background}
Cadet Webster Smith was initially charged with twenty-two
specifications, the majority of which related to his sexual
relationships with female cadets at the United States Coast
Guard Academy. Eleven of those charges were dismissed before
trial. At a general court-martial composed of members, Smith
was found not guilty of six of the remaining charges. Contrary
to his pleas, the members found him guilty of absence without
leave, attempted failure to obey a lawful order, sodomy,
extortion, and indecent assault. The sodomy, extortion, and
indecent assault charges arose out of allegations made by SR, a
female cadet.
In this appeal, Smith asserts that the military judge erred
by preventing him from fully cross-examining SR as to her motive
and credibility in violation of his Sixth Amendment right to
confrontation and the “constitutionally required” exception to
Military Rule of Evidence (M.R.E.) 412. M.R.E. 412(b)(1)(C).
At trial the defense filed a motion pursuant to M.R.E. 412
requesting permission to cross-examine SR about her alleged
statements to Smith concerning a prior sexual encounter she had
with an enlisted servicemember. The factual basis for the
motion was summarized by the military judge in his findings of
fact:
During the summer training program at the start
of their first class year, Cadet Smith and [SR] were
both assigned to patrol boats that moored at Station
Little Creek. Both lived in barracks rooms at the
Station. In May 2005, Cadet Smith approached [SR] to
inform her that he was hearing rumors from the
enlisted personnel assigned to the Station that she
had a sexual encounter with an enlisted member
assigned to the Station. [SR] told him that this was
true, but that it was not a consensual encounter.
Cadet Smith then informed the enlisted personnel who
were spreading the rumors that the conduct was not
consensual.
On or about 19 October 2005, Cadet Smith again
approached [SR]. He told her that he had remained in
contact with some of the enlisted personnel assigned
to Station Little Creek and that the rumors
surrounding her sexual encounter with the enlisted man
had continued. This time she told him that the
incident with the enlisted man had been a consensual
encounter and that the scope of the encounter had been
greater than she had previously described.
At the Article 32 hearing, [SR] merely stated
that she had confided a secret to Cadet Smith. In her
15 February 2006 statement, she merely stated that a
situation occurred which led to rumors. On both
occasions, she went on to state that on October 19th,
she was concerned enough that Cadet Smith would expose
this secret that she agreed to pose for a picture with
him in which both of them were nude, and later that
night allowed him to perform cunnilingus on her then
she performed fellatio on him.
In the defense motion, Smith argued that the evidence was
constitutionally required because “[t]he fact that the alleged
victim lied to Cadet Smith about her sexual activity and has
misled CGIS about that activity tends to show the alleged victim
as untruthful about her sexual conduct generally and
specifically has motive to lie about the specific sexual rumors
underlying the charge -- the very issue before the trier of
fact.”
The Government opposed the admission of the evidence
arguing that the substance of SR’s secret was not relevant,
material, or vital to Smith’s defense. In denying the motion
the military judge concluded that: while the evidence was
relevant, the members did not need to know the specifics, but
could be provided with a non-specific summary;1 although the
evidence could show that SR had a propensity to bring false
accusations against men with whom she had consensual sexual
encounters, the evidence was not strong since the source of the
allegation, Smith, was biased; there was a significant
(Footnote: 1 The military judge found that “the members could be informed
that the secret was information that if revealed could have an
adverse impact on [SR’s] Coast Guard career, including possibly
disciplinary action under the UCMJ.”)
difference between SR making a false allegation to Smith and
making a false allegation to law enforcement authorities; and
the probative value of the evidence was outweighed by the danger
of unfair prejudice.
The United States Coast Guard Court of Criminal Appeals
affirmed the findings and sentence.
We review a military
judge’s decision to admit or exclude evidence for an abuse of
discretion. United States v. Ayala, 43 M.J. 296, 298 (C.A.A.F.
1995). In doing so, we review findings of fact under the clearly
erroneous standard and conclusions of law under the de novo
standard.

(Discussion)
The evidence at issue was proffered to attack SR’s
credibility by establishing that she had earlier made a false
allegation of a nonconsensual sexual encounter to protect her
Coast Guard career. Before addressing the M.R.E. 412 issue, it
is worth noting that there is some question as to whether M.R.E.
412 even applies to this type of evidence. The Drafters’
Analysis to M.R.E. 412 states “[e]vidence of past false
complaints of sexual offenses by an alleged victim of a sexual
offense is not within the scope of this Rule and is not
objectionable when otherwise admissible.”
However, given the
posture of this case on appeal, and assuming that M.R.E. 412
does apply, the evidence is clearly admissible under the M.R.E.
412 analysis.
1. Objections Under M.R.E. 412
“[A] criminal defendant states a violation of the
Confrontation Clause by showing that he was prohibited from
engaging in otherwise appropriate cross-examination designed to
show a prototypical form of bias on the part of the witness, and
thereby ‘to expose to the jury the facts from which jurors . . .
could appropriately draw inferences relating to the reliability
of the witness.’” Delaware v. Van Arsdall.
“[E]xposure of a witness’ motivation in testifying is a proper
and important function of the constitutionally protected right
of cross-examination.” “The question is whether
‘[a] reasonable jury might have received a significantly
different impression of [the witness’s] credibility had [defense
counsel] been permitted to pursue his proposed line of crossexamination.’”
(United States v. Collier).
See also Fed. R. Evid. 412 advisory committee’s note on
proposed 1994 amendment (“Evidence offered to prove allegedly
false prior claims by the victim is not barred by Rule 412.
However, the evidence is subject to the requirements of Rule
404.”).
(quoting Van Arsdall, 475
U.S. at 680).
“M.R.E. 412 was intended to protect victims of sexual
offenses from the degrading and embarrassing disclosure of
intimate details of their private lives while preserving the
constitutional rights of the accused to present a defense.”
United States v. Banker, 60 M.J. 216, 219 (C.A.A.F 2004). There
are, however, three exceptions to the exclusionary provisions of
M.R.E. 412. Smith relied on the third exception that requires
the admission of evidence “the exclusion of which would violate
the constitutional rights of the accused.” M.R.E. 412(b)(1)(C).
“This exception addresses an accused’s Sixth Amendment right of
confrontation and Fifth Amendment right to a fair trial.”
Banker, 60 M.J. at 221 (citations omitted) (emphasis added).
Banker requires that “where evidence is offered pursuant to this
exception, it is important for defense counsel to detail an
accused’s theory of relevance and constitutional necessity.” 60
M.J. at 221. Smith’s counsel did just that in this case.

(2. Relevance and Materiality)
In order to properly determine whether evidence is
admissible under the constitutionally required exception the
military judge must evaluate whether the proffered evidence is
relevant, material, and favorable to the defense. Id. at 222.
“[T]he relevancy portion of this test is the same as that
employed for the other two exceptions of the rule,” which is
that “[e]vidence is relevant if it has ‘any tendency to make the
existence of any fact . . . more probable or less probable than
it would be without the evidence.’ M.R.E. 401.” Id. at 222.
The proffered evidence could have impacted SR’s credibility by
allowing the defense to provide a commonsense explanation for SR
to give false testimony. That is, when SR learned of the
investigation of Smith for alleged sexual offenses, she became
concerned that the investigation would produce allegations that
she had engaged in prohibited sexual activity3 with Smith in
their dormitory at the Coast Guard Academy, thereby jeopardizing
her own career. Thus, she fabricated the charges against Smith
to protect her career, as she had in the past for the same
reason. The military judge found that the evidence would be
relevant and I agree.
Having found the evidence relevant, the next step for the
military judge was to determine whether the evidence was
“material and favorable to the accused’s defense, and thus
whether it is ‘necessary’.”
3 Pursuant to Regulations for the Code of Cadets 4-5-05.a.3,
sexual conduct is prohibited on Coast Guard Academy
installations even if it is between consenting cadets. Cadets
found guilty of consensual sexual misconduct can be disenrolled.

In determining whether evidence is material, the
military judge looks at “the importance of the issue
for which the evidence was offered in relation to the
other issues in this case; the extent to which this
issue is in dispute; and the nature of the other
evidence in the case pertaining to this issue.”

There can be no dispute that testing the credibility of a
witness through cross-examination is crucial to the right of
confrontation.
A more particular attack on the witness’ credibility
is effected by means of cross-examination directed
toward revealing possible biases, prejudices, or
ulterior motives of the witness as they may relate
directly to issues or personalities in the case at
hand. The partiality of a witness is subject to
exploration at trial, and is “always relevant as
discrediting the witness and affecting the weight of
his testimony.” 3A J. Wigmore, Evidence § 940, p. 775
(Chadbourn rev. 1970). We have recognized that the
exposure of a witness’ motivation in testifying is a
proper and important function of the constitutionally
protected right of cross-examination,
this was a “he said -- she said” case and for the charges at
issue in this appeal,4 the critical question for the members was
the credibility of the sole prosecution witness. Evidence of a
motive to fabricate and that SR had alleged that an earlier
consensual sexual encounter was nonconsensual in an attempt to
protect her career bears directly on SR’s credibility as to the
allegations she made against Smith. It may have shown that SR
had a propensity to lie about consensual sexual encounters when
her career was on the line. The materiality of this evidence is
not the “lurid nuances of the victim’s sexual past” as noted by
the majority, but rather the allegation that SR had previously
lied about a sexual encounter under similar circumstances.
(
3. Balancing)
Once the military judge has determined that the proffered
evidence is relevant and material, the military judge must
undertake the M.R.E. 412 balancing test to determine if the
evidence is favorable to the accused’s defense.5 Banker, 60 M.J.
at 222. The term favorable is synonymous with vital. Id.
“[W]hen balancing the probative value of the evidence against
the danger of unfair prejudice under M.R.E. 412, the military
judge must consider . . . factors such as confusion of the
issues, misleading the members, undue delay, waste of time,
5 Commentators have noted that the “constitutionally required”
exception may be unnecessary since once it is established that
the evidence is constitutionally required, there can be no
further limitation on its admission. See 1 Stephen A. Saltzburg
et al., Military Rules of Evidence Manual § 412.02[4], at 4-194
(6th ed. 2006) (“Any limitation on a constitutional right would
be disregarded whether or not such a Rule existed.”);
Christopher B. Mueller & Laird C. Kirkpatrick, Federal Evidence
§ 4:81, at 306 (3d ed. 2007) (“The exception is arguably
unnecessary because Fed. R. Evid. 412 is subordinate to the
Constitution anyway, but perhaps including it diminishes the
sense of conflict between the two legal standards.”).
United States v. Smith, No. 08-0719/CG
1 0
needless presentation of cumulative evidence, [and] also
prejudice to the victim’s legitimate privacy interests.” Id. at
223. The M.R.E. 412 balancing test weighs in Smith’s favor.
Under the circumstances of this case, any risk of confusion of
the issues, misleading the members, wasting time, or presenting
cumulative evidence was minimal and is outweighed by the high
probative value of this evidence.
In Dorsey the court found evidence favorable when it
“undermined the credibility of the sole prosecution witness who
directly testified to appellant’s guilt of the charged offense.”
Dorsey, 16 M.J. at 7. In a similar fashion, admission of a
prior false allegation of a nonconsensual sexual encounter could
have undermined the credibility of SR, the only witness who
testified against Smith on the extortion, sodomy, and indecent
assault charges.
While the evidence of SR’s earlier allegation of a false
nonconsensual sexual encounter and her subsequent admission that
the encounter was consensual would have impacted her privacy
interests, withholding this constitutionally required evidence
from the panel deprived Smith of his best opportunity to provide
a motive for SR’s allegations and to challenge her credibility.
The fact that the military judge allowed the panel to hear that
SR had a secret that, if revealed could have an adverse impact
on her Coast Guard career, including possibly disciplinary
1 1
action under the UCMJ, was simply not sufficient. With this
limited information about SR’s secret, the members were left to
speculate whether the secret was a minor disciplinary infraction
or a more serious charge, but they had no idea that the
proffered evidence directly implicated SR’s motive and
credibility.6
In Collier this court found the military judge erred in
limiting cross-examination of the complaining witness for
possible bias. Collier, 67 M.J. at 349. There, the defendant
attempted to establish bias by presenting evidence of the
existence of a romantic relationship that ended badly between
the accused and the complaining witness. Id. at 351. The
military judge only allowed cross-examination as to the “breakup
of a friendship.” Id. at 351-52. This court found that there
was a qualitative difference between the two situations and if
the members had been shown evidence of the romantic relationship
they might have had a significantly different impression of the
accusing witness’ credibility. Id. at 352, 353. Similarly,
there is a qualitative difference between an undisclosed
6 Trial counsel illustrated the range of incidents that the
members could have speculated on when, at one point during his
argument on the motion, he stated that while the existence of
the secret was extremely relevant, the content of the secret was
not. Trial counsel argued, “[t]he extortion charge is that
there was a secret. It doesn’t matter if that secret was
whether she liked Smarties. It doesn’t matter if she had
committed some other felony . . . .”
1 2
situation that “could have had an adverse impact on [SR’s] Coast
Guard career” and an allegation that SR had previously made a
false allegation of a nonconsensual sexual encounter to protect
her career.
While the military judge found that the evidence was not
strong because it came from Smith, who had an obvious bias, it
is well established that “[t]he weight and credibility of the .
. . witness are matters for the members alone to decide.”
United States v. Moss, 63 M.J. 233, 239 (C.A.A.F. 2006) (citing
United States v. Bins, 43 M.J. 79, 85 (C.A.A.F. 1995)). The
court in Banker noted that the role of the military judge is to
assure that the evidence meets the usual evidentiary standards.
Banker, 60 M.J. at 224 (citing United States v. Platero, 72 F.3d
806, 812 (10th Cir. 1995)). The court in Platero went on to
say, “when the Judge decides whether or not a defense is true or
false and decides that on the basis of the credibility of the
witnesses, the Judge is doing what the jury is supposed to do in
a serious criminal case covered by the Sixth Amendment.”
Platero, 72 F.3d at 812.
Smith had a commonsense explanation for SR’s claim that the
sexual activity was nonconsensual and the military judge’s
ruling prevented the members from considering this theory. The
alleged false accusation was close in time to the allegation
made against Smith, both allegations involved military members
1 3
and both situations presented a motive for SR to lie about the
consensual nature of her sexual activities to protect her
career. Putting aside the fact that M.R.E. 412 may not even
apply to this type of evidence, I would conclude that the
evidence should have been admitted under M.R.E. 412. I would
further find that the error was not harmless beyond a reasonable
doubt as it essentially deprived Smith of his best defense and
“the excluded evidence may have tipped the credibility balance
in [Smith’s] favor.” Moss, 63 M.J. at 239.
I would reverse the decision of the United States Coast
Guard Court of Criminal Appeals and set aside the findings and
sentence for Additional Charge I, Specification 1 of Additional
Charge II, and Additional Charge III, and remand the case for
further proceedings, if any.
(HISTORY WOULD HAVE SMILED ON THIS DECISION.)

Insted, we got this.

STUCKY, J., delivered the judgment of the Court, in which RYAN,
J., joined. BAKER, J., filed a separate opinion concurring in
the result. ERDMANN, J., filed a separate opinion concurring in
part and dissenting in part, in which EFFRON, C.J., joined.

We granted
review to decide whether Appellant was denied his right to
confront his accuser on those three specifications. We hold
that Appellant was not denied his right to confront his accuser,
and affirm.

How Shall We View The Webster Smith Case?

2010-04-01T06:18:00.000-07:00

How shall we view the Webster Smith case? In order to properly view it, and to understand it best, we must view it in its proper historical perspective. It must be seen in context. We must view it in terms of American History and the History of the American Judicial System.

Is the decision an accurate measure of white middle class American thought? Is that decision an accurate measure of career military officer and cadet opinions? Is this an accurate gage of the level of "equal protection of laws" Black Americans can expect in any judicial forum in America?

Webster Smith is an African American. He is the latest member of the most recent generation of African Americans who are direct descendants of the original American slaves. Slavery in America was not just a way of life; it was a culture. We ended slavery after the Civil War but we have not yet eradicated the last vestiges of the slave culture. Today it comes in many guises and bears many names; such as, institutionalize racism, bias, discrimination, racial prejudice, white supremacy, Black inferiority, Social Darwinism, reverse discrimination,the Death Penalty, Driving While Black, Disrespect of Cop, plantation justice, affirmative action, preferential treatment, and other coded words. Racism remains a powerful force in America. (L. Friedman,A History of American Law, p. 529)

American justice has never been kind to African Americans. The administration of American justice has never been accommodating to the Black man. Constitutional rights for Blacks are hard to turn into reality in America. Beginning with the slave trade, the Fugitive Slave Laws, the Black Codes after the Civil War, the Restrictive Covenants in real estate contracts, separate but equal, and the ways of Jim Crow, an entire culture was fashioned and designed to keep Blacks in their place. Blacks were kept under strict social control. Slavery was replaced with a caste system. Formal segregation replaced a system of outright exclusion. The message was that Blacks would never be welcomed into white society. (L. Friedman, A History of American Law, p.159,383)

The entire process from the Coast Guard Academy court-martial, to the Coast Guard Court of Criminal Appeals, to the Court of Appeals for the Armed Forces was designed to give Webster Smith at least the appearance of justice and the appearance of fairness. And that is all that he has received so far. There still exists the possibility of a Supreme Court appeal.

The Court of Appeals for the Armed Forces (CAAF) lost prestige with this case. When a case finally came along with profound historical significance, the CAAF was not worthy of the task. It could not rise to the occasion.

A case finally came along that did not involve being late for work or quitting your job and looking for a new job, disobeying an order, or some other minor criminal offense and the CAAF failed to appreciate the difference or the distinction.

In the military if one is absent without leave or authority (AWOL), then he might get sent to jail. In the civilian world it is seen as merely being late for work. Not showing up for work or simply quitting your job in the civilian world is the military equivalent of desertion, and is punished very harshly. These are serious offenses in the military but they do not have profound historical significance. The Webster Smith case had profound historical significance.

The Webster Smith case is a litmus test for American military justice. This was no ordinary trial. It was not insignificant. Our humanity was on trial. Our system of justice was on trial. Every once in a while a case comes along that puts our humanity as a people, as Americans, on trial. Everything that we profess to stand for as Americans was on trial. Our sense of Justice in America and particularly in the U. S. Military was on trial. I have devoted my life to a pursuit of justice and fairness in America and in the world. As a student of history and as a humanitarian servant, this case, this trial, and the entire appeal's process offends my sense of justice, human dignity and fairness. When I witnessed the Webster Smith trial I saw Justice fall from Heaven as lightning.

This trial defines American justice and military justice in a predominantly white justice system in a country with a long history of slavery, segregation, discrimination, lynching, and disenfranchising Black Americans. In a country where Social Darwinism teaches that Blacks are inferior and sub-human, and whose Constitution originally defined a Black person as only 60 percent or two thirds of a white person, the Webster Smith case was a defining moment for Black-white relations.

No feature of American life has been so marked with blood and failure as the confrontation of Black and white. This is particularly true when there is an element of sex. As Virginia Gov. Robert F. McDonnell (R) said on 7 Apr 2010 concerning slavery when he issued his proclamation declaring April Confederate History Month "slavery has left a stain on the soul of this state and nation. Slavery was an evil and inhumane practice that deprived people of their God-given inalienable rights and all Virginians are thankful for its permanent eradication from our borders."

The entire justice system in American has been employed to keep Blacks in their place. When the System was not executing Blacks for fraternizing with whites, it was whipping, branding, or incarcerating them. When a military criminal case came along that involved a Black man and a white woman; a he-said, she-said case; involving sex, lies, and racial bias, the CAAF chose to add another link to the unbroken chain of cases that punish Blacks for being human beings and daring to act as if they were as free as any other American citizen who happens to be white.

The real crime against Webster Smith was that the white girls liked him. That is what he was punished for. The case was designed to send a message to the white girls and the Black men that in American we don't want you fraternizing.

This could be a very sticky wicket at the Coast Guard Academy where one out of every three cadets is a white female. If we are to punish with such Draconian measures any Black male cadet who catches the eye of a white female it would be simpler to suspend minority recruiting. It makes absolutely no sense to recruit Black males, put them in the same barracks with white females, and prohibit them from inter-acting appropriately.

Webster Smith is fortunate in one respect. That is he should be glad that he is alive. If he had been Emmett Till he would be dead. He would not have had a trial or an appeal. That night in 2005 when when was awoken at midnight and snatched out of his bed in Chase Hall in handcuffs, he could very easily have been going to his death at the end of a rope. As it was, he was simply placed in illegal pre-trial confinement and forced to work at hard labor before any charges had been preferred against him.

The CAAF could have taken its historical place on the right side of History with cases like Brown v. Bd of Ed., Griggs v Duke Power, etc
However, it chose to take its place on the left side of History with cases like The Dred Scott Decision, The Court-martial of Jackie Robinson, Plessy v Ferguson, Bakke, etc.

Judgement Day for Webster Smith.

2010-03-31T07:23:00.000-07:00

UNITED STATES, Appellee
v.
Webster M. SMITH, Cadet
U.S. Coast Guard, Appellant
No. 08-0719
Crim. App. No. 1275
United States Court of Appeals for the Armed Forces
November 10, 2009
March 29, 2010
STUCKY, J., delivered the judgment of the Court, in which RYAN,
J., joined. BAKER, J., filed a separate opinion concurring in
the result. ERDMANN, J., filed a separate opinion concurring in
part and dissenting in part, in which EFFRON, C.J., joined.
Counsel
For Appellant: Ronald C. Machen, Esq. (argued); Commander Necia
L. Chambliss, Will L. Crossley, Esq., and Daniel S. Volchok,
Esq. (on brief); Lieutenant Robert M. Pirone and Stuart F.
Delery, Esq.
For Appellee: Lieutenant Emily P. Reuter (argued); Commander
Stephen P. McCleary, Lieutenant Commander Brian K. Koshulsky,
and Lieutenant Alfred J. Thompson.
Military Judge: Brian M. Judge
THIS OPINION IS SUBJECT TO REVISION BEFORE FINAL PUBLICATION.
United States v. Smith, No. 08-0719/CG
2
Judge STUCKY delivered the judgment of the Court.
At trial, the military judge limited Appellant’s crossexamination
of Cadet SR, the Government’s only witness on his
three convictions related to sexual misconduct. We granted
review to decide whether Appellant was denied his right to
confront his accuser on those three specifications. We hold
that Appellant was not denied his right to confront his accuser,
and affirm.
I.
A general court-martial consisting of members convicted
Appellant, contrary to his pleas, of attempting to disobey an
order, going from his place of duty, sodomy, extortion, and
indecent assault. Articles 80, 86, 125, 127, and 134, Uniform
Code of Military Justice (UCMJ), 10 U.S.C. §§ 880, 886, 925,
927, 934 (2006). The convening authority approved the sentence
the members adjudged: a dismissal, confinement for six months,
and forfeiture of all pay and allowances. The United States
Coast Guard Court of Criminal Appeals affirmed on April 9, 2008.
United States v. Smith, 66 M.J. 556, 563 (C.G. Ct. Crim. App.
2008). Appellant filed a motion for reconsideration which was
denied on May 14, 2008. Appellant petitioned this Court for
review on July 14, 2008.
United States v. Smith, No. 08-0719/CG
3
II.
As a preliminary matter, the Government contends that
Appellant’s petition for review was not timely filed, and that
therefore the grant of review should be dismissed as
improvidently granted. Article 67(b), UCMJ, 10 U.S.C. § 867(b)
(2006), provides that an accused has sixty days to petition this
Court for review from the earlier of “(1) the date on which the
accused is notified of the decision of the Court of Criminal
Appeals; or (2) the date on which a copy of the decision . . . ,
after being served on appellate counsel of record for the
accused . . . is deposited in the United States mails for
delivery by first class certified mail to the accused.” In
United States v. Rodriguez, we held that the sixty-day statutory
period for filing petitions for review was jurisdictional and
could not be waived. 67 M.J. 110, 116 (C.A.A.F. 2009).
Before filing a petition for review at this Court,
Appellant timely sought reconsideration of the CCA’s decision.
Until the CCA rendered a decision on the reconsideration
request, either by denying reconsideration or by granting
reconsideration and rendering a new decision, there was no CCA
decision for this Court to review. We hold that Appellant’s
sixty-day period for filing at this Court began on the date the
defense was formally notified, under the provisions of Article
67(b), UCMJ, of the CCA’s decision on reconsideration. The
United States v. Smith, No. 08-0719/CG
4
evidence of record does not support the Government’s contention
that the appeal was untimely filed.
III.
Appellant and Cadet SR were cadets at the United States
Coast Guard Academy. During the summer of 2005, Cadet SR and
Appellant were assigned to neighboring Coast Guard cutters in
Norfolk, Virginia. While there, Cadet SR committed an
indiscretion that could have jeopardized her ranking as a cadet
and threatened her Coast Guard career. Shortly thereafter,
Appellant sent her a text message saying that he hoped the
rumors he was hearing were not true. Cadet SR discussed the
situation with Appellant but lied about some of the details.
Appellant “said he’d try to squash rumors, and that it would be
okay.”
In October of that year, after both had returned to the
Academy, Appellant notified Cadet SR that the rumors were
persisting. She then truthfully disclosed the details of her
indiscretion. Appellant said he would continue to try to
suppress the rumors, but that he needed motivation to do so.
Appellant denied he was seeking sexual favors but suggested the
couple take a photograph of themselves naked together to build
“trust in one another.” After the photo, Appellant left but
returned to her room later that evening. On this occasion, he
United States v. Smith, No. 08-0719/CG
5
inserted his fingers in her vagina and placed his tongue on her
clitoris. Cadet SR then performed fellatio on him.
IV.
Appellant alleged that Cadet SR’s indiscretion involved
engaging in sex with an enlisted member and, pursuant to
Military Rule of Evidence (M.R.E.) 412(c)(1), Appellant moved to
admit evidence of this prior sexual conduct. That rule provides
that “[e]vidence offered to prove that any alleged victim
engaged in other sexual behavior” is not generally admissible.
M.R.E. 412(a)(1). However, “evidence the exclusion of which
would violate the constitutional rights of the accused” is
admissible. M.R.E. 412(b)(1)(C).
During a closed hearing conducted pursuant to M.R.E.
412(c)(2), Appellant testified that in May 2005 Cadet SR told
him that she had had nonconsensual sexual encounters with an
enlisted member, but that in October 2005 she admitted that
those sexual encounters had actually been consensual. Cadet SR
invoked her right against self-incrimination and did not testify
at the hearing. Appellant argued that he should be allowed to
question Cadet SR about the encounters for “the specific purpose
of establishing a pattern of lying about sexual events.”
The military judge sustained the Government’s objection to
the admission of this evidence, but allowed the “members [to] be
informed that [Cadet SR’s] secret was information that if
United States v. Smith, No. 08-0719/CG
6
revealed could have an adverse impact on her Coast Guard career,
including possibly disciplinary action under the UCMJ.” The CCA
affirmed this decision. Smith, 66 M.J. at 560-61. Appellant
asserts that the military judge erred in not admitting the
sexual nature of Cadet SR’s indiscretion, and requests that we
set aside his convictions for extortion, sodomy, and indecent
acts.
V.
The Sixth Amendment provides that “[i]n all criminal
prosecutions, the accused shall enjoy the right . . . to be
confronted with the witnesses against him.” U.S. Const. amend.
VI. The right to confrontation includes the right of a military
accused to cross-examine adverse witnesses. See United States
v. Clayton, 67 M.J. 283, 287 (C.A.A.F. 2009). Uncovering and
presenting to court members “a witness’ motivation in testifying
is a proper and important function of the constitutionally
protected right of cross-examination.” Davis v. Alaska, 415
U.S. 308, 316 (1974) (citation omitted). “Through crossexamination,
an accused can ‘expose to the jury the facts from
which jurors . . . could appropriately draw inferences relating
to the reliability of the witness.’” United States v. Collier,
67 M.J. 347, 352 (C.A.A.F. 2009) (quoting Davis, 415 U.S. at
318).
United States v. Smith, No. 08-0719/CG
7
Typically, we review a military judge’s decision to admit
or exclude evidence for an abuse of discretion. See United
States v. Weston, 67 M.J. 390, 392 (C.A.A.F. 2009). We have
also applied the abuse of discretion standard to alleged
violations of the Sixth Amendment Confrontation Clause. United
States v. Moss, 63 M.J. 233, 236 (C.A.A.F. 2006); United States
v. Israel, 60 M.J. 485, 488 (C.A.A.F. 2005).
Appellant has the burden under M.R.E. 412 of establishing
his entitlement to any exception to the prohibition on the
admission of evidence “offered to prove that any alleged victim
engaged in other sexual conduct.” United States v. Banker, 60
M.J. 216, 218, 223 (C.A.A.F. 2004) (citation omitted). To
establish that the excluded evidence “would violate the
constitutional rights of the accused,” M.R.E. 412(b)(1)(C), an
accused must demonstrate that the evidence is relevant,
material, and favorable to his defense, “and thus whether it is
‘necessary.’” Id. at 222 (quoting United States v. Williams, 37
M.J. 352, 361 (C.M.A. 1993)). The term “‘favorable’” as used in
both Supreme Court and military precedent is synonymous with
“‘vital.’” Id. (quoting United States v. Valenzuela-Bernal, 458
U.S. 858, 867 (1982); United States v. Dorsey, 16 M.J. 1, 8
(C.M.A. 1983)).
Appellant contends that his inability to cross-examine
Cadet SR about the nature of the secret affected his convictions
United States v. Smith, No. 08-0719/CG
8
for sodomy, extortion, and committing an indecent act. We
conclude that further cross-examination of Cadet SR was not
“constitutionally required.” Assuming arguendo that the exact
nature of the indiscretion -- that it involved consensual sexual
relations with an enlisted member -- was relevant, it was
neither material nor vital to Appellant’s defense.
Testimony is material if it was “‘of consequence to the
determination of’ appellant’s guilt.” Dorsey, 16 M.J. at 6
(quoting M.R.E. 401). In determining whether evidence is of
consequence to the determination of Appellant’s guilt, we
“consider the importance of the issue for which the evidence was
offered in relation to the other issues in this case; the extent
to which this issue is in dispute; and the nature of other
evidence in the case pertaining to this issue.” Id. (citation
omitted). In this case, the evidence was offered on a
significant issue, the alleged victim’s credibility, which was
in dispute. Nevertheless, knowledge of the exact nature of her
indiscretion in relation to the other issues in the case was not
important. The military judge allowed Appellant to present a
fairly precise and plausible theory of bias, i.e., that she lied
to preserve a secret which “if revealed could have an adverse
impact on her Coast Guard career, including possibly
disciplinary action under the UCMJ.” While Cadet SR’s
credibility was in contention, it is unclear why the lurid
United States v. Smith, No. 08-0719/CG
9
nuances of her sexual past would have added much to Appellant’s
extant theory of fabrication.
Nor is cross-examining Cadet SR about her sexual past
“‘vital’” under Banker, 60 M.J. at 222 (quoting Valenzuela-
Bernal, 458 U.S. at 867; Dorsey, 16 M.J. at 8)). The “vital”
issue is not whether Cadet SR engaged in consensual sex with an
enlisted member or whether she lied to Appellant about it, but
rather whether she lied about an important issue that would
impeach her credibility. Cadet SR admitted that she had been in
a “situation” that could have jeopardized her career and her
ranking as a cadet; that the “situation” was in violation of
cadet regulations and possibly a violation of the UCMJ; and that
she initially lied to Appellant about the “situation.” All of
this was before the members. The military judge did not abuse
his discretion; he provided Appellant what he was due under the
Confrontation Clause: an opportunity to impeach the
complainant’s credibility.
Finally, Appellant argues that Cadet SR’s past indiscretion
and her lies about it gave her similar motive to lie about her
relationship with Appellant. We decline to embrace such a
broad, cumulative reading of M.R.E. 412 and its case law. Even
according to Appellant’s own theory, Cadet SR lied about her
sexual past to protect herself, not a relationship with another,
unlike United States v. Williams, 37 M.J. 352 (C.M.A. 1993), or
United States v. Smith, No. 08-0719/CG
10
Olden v. Kentucky, 488 U.S. 227 (1988). This is not a case like
Collier in which the appellant asserted she was framed for
larceny by her gay lover after the breakup of the relationship.
67 M.J. at 351. Nor does this case involve recent extramarital
sex or rejection and invective which might have caused the
victim to falsely claim rape, as in Dorsey, 16 M.J. at 6. To
the extent Appellant might have tried to introduce some
nonsexual aspects of his theory of bias via M.R.E. 608(c), he
failed to frame or raise this issue as such at trial.
VI.
The decision of the United States Coast Guard Court of
Criminal Appeals is affirmed.
United States v. Smith, No. 08-0719/CG
BAKER, Judge (concurring in the result):
I concur in the result. In my view, this case is governed
by United States v. Banker, 60 M.J. 216, 225 (C.A.A.F. 2004).
In Banker, we concluded that in the context of Military Rule of
Evidence (M.R.E.) 412, it is “within the judge’s discretion to
determine that such a cursory argument [does] not sufficiently
articulate how the testimony reasonably established a motive to
fabricate. . . . [It is] within the discretion of the military
judge to conclude that the offered testimony was not relevant.”
Id. at 225. The burden is on the appellant to prove why the
M.R.E. 412 prohibition should be lifted. Id.
Appellant’s theory of admission was that SR, having lied to
Appellant about her prior sexual misconduct with an enlisted
member of the Coast Guard, demonstrated a propensity to lie
about her sex life generally and in particular to make false
allegations to law enforcement authorities to conceal her own
sexual misconduct. Appellant argues that SR’s misconduct also
included engaging in consensual sexual activities with Appellant
in the Cadet barracks. Therefore, Appellant argues, he had a
constitutional right to cross-examine SR about her prior sexual
conduct, notwithstanding the general prohibition on such
examination enshrined in M.R.E. 412.
The problem for Appellant is that his theory of admission
is too far-fetched to pass constitutional and M.R.E. 403 muster.
United States v. Smith, No. 08-0719/CG
2
First, SR had no obligation to tell Appellant about her sexual
life and misconduct. It does not logically follow that someone
who would lie to protect her privacy from a probing acquaintance
would lie to the police and commit perjury. Second, it was SR
herself who reported her sexual contact with Appellant; this
cuts against Appellant’s theory that SR would lie to conceal her
own misconduct. Third, to support this theory of admission the
members needed to know that SR had “lied” to Appellant about her
sexual misconduct; they did not need to know the details of the
prior sexual conduct. This much the military judge permitted.
In my view, Appellant might have a different appellate case
if he had argued to this Court that members needed to know the
nature of “the secret” in order to assess beyond a reasonable
doubt whether SR might succumb to pressure to protect the
secret. This alternative theory was not the basis of
Appellant’s appeal before this Court. In any event, it should
be noted that the military judge rejected this theory at trial,
his conclusions of law stating:
While the importance of her secret would be relevant
in this fashion, I do not think that the members would
need to know the specifics. At the Article 39(a)
session, the Government offered a generic formulation
that would impress upon the members the seriousness of
the secret. In essence, the members could be informed
that the secret was information that if revealed could
have an adverse impact on her Coast Guard career,
including possibly disciplinary action under the UCMJ.
United States v. Smith, No. 08-0719/CG
3
Reasonable judges might disagree on whether additional detail
about “the secret” was needed for members to fairly assess
whether this Coast Guard cadet was coerced into sexual conduct
to safeguard that secret. But I am not persuaded that it was
plain error. The military judge informed the members that the
secret exposed the witness to criminal liability and violated
academy regulations. This is the very sort of balancing
military judges are supposed to conduct when they weigh an
accused’s rights and a victim’s privacy under M.R.E. 412.
United States v. Smith, No. 08-0719/CG
ERDMANN, Judge, with whom EFFRON, Chief Judge, joins
(concurring in part and dissenting in part):
While I concur with the majority opinion as to the
jurisdictional issue raised by the Government, I respectfully
dissent from the majority’s conclusion as to the granted issue.
In a case where credibility of the complainant was fundamental,
the military judge prevented the defense from presenting to the
panel an explanation of the circumstances that would have
provided a motive for the complainant to make a false allegation
of rape.
Background
Cadet Webster Smith was initially charged with twenty-two
specifications, the majority of which related to his sexual
relationships with female cadets at the United States Coast
Guard Academy. Eleven of those charges were dismissed before
trial. At a general court-martial composed of members, Smith
was found not guilty of six of the remaining charges. Contrary
to his pleas, the members found him guilty of absence without
leave, attempted failure to obey a lawful order, sodomy,
extortion, and indecent assault. The sodomy, extortion, and
indecent assault charges arose out of allegations made by SR, a
female cadet.
In this appeal, Smith asserts that the military judge erred
by preventing him from fully cross-examining SR as to her motive
United States v. Smith, No. 08-0719/CG
2
and credibility in violation of his Sixth Amendment right to
confrontation and the “constitutionally required” exception to
Military Rule of Evidence (M.R.E.) 412. M.R.E. 412(b)(1)(C).
At trial the defense filed a motion pursuant to M.R.E. 412
requesting permission to cross-examine SR about her alleged
statements to Smith concerning a prior sexual encounter she had
with an enlisted servicemember. The factual basis for the
motion was summarized by the military judge in his findings of
fact:
During the summer training program at the start
of their first class year, Cadet Smith and [SR] were
both assigned to patrol boats that moored at Station
Little Creek. Both lived in barracks rooms at the
Station. In May 2005, Cadet Smith approached [SR] to
inform her that he was hearing rumors from the
enlisted personnel assigned to the Station that she
had a sexual encounter with an enlisted member
assigned to the Station. [SR] told him that this was
true, but that it was not a consensual encounter.
Cadet Smith then informed the enlisted personnel who
were spreading the rumors that the conduct was not
consensual.
On or about 19 October 2005, Cadet Smith again
approached [SR]. He told her that he had remained in
contact with some of the enlisted personnel assigned
to Station Little Creek and that the rumors
surrounding her sexual encounter with the enlisted man
had continued. This time she told him that the
incident with the enlisted man had been a consensual
encounter and that the scope of the encounter had been
greater than she had previously described.
At the Article 32 hearing, [SR] merely stated
that she had confided a secret to Cadet Smith. In her
15 February 2006 statement, she merely stated that a
situation occurred which led to rumors. On both
occasions, she went on to state that on October 19th,
United States v. Smith, No. 08-0719/CG
3
she was concerned enough that Cadet Smith would expose
this secret that she agreed to pose for a picture with
him in which both of them were nude, and later that
night allowed him to perform cunnilingus on her then
she performed fellatio on him.
In the defense motion, Smith argued that the evidence was
constitutionally required because “[t]he fact that the alleged
victim lied to Cadet Smith about her sexual activity and has
misled CGIS about that activity tends to show the alleged victim
as untruthful about her sexual conduct generally and
specifically has motive to lie about the specific sexual rumors
underlying the charge -- the very issue before the trier of
fact.”
The Government opposed the admission of the evidence
arguing that the substance of SR’s secret was not relevant,
material, or vital to Smith’s defense. In denying the motion
the military judge concluded that: while the evidence was
relevant, the members did not need to know the specifics, but
could be provided with a non-specific summary;1 although the
evidence could show that SR had a propensity to bring false
accusations against men with whom she had consensual sexual
encounters, the evidence was not strong since the source of the
allegation, Smith, was biased; there was a significant
1 The military judge found that “the members could be informed
that the secret was information that if revealed could have an
adverse impact on [SR’s] Coast Guard career, including possibly
disciplinary action under the UCMJ.”
United States v. Smith, No. 08-0719/CG
4
difference between SR making a false allegation to Smith and
making a false allegation to law enforcement authorities; and
the probative value of the evidence was outweighed by the danger
of unfair prejudice.
The United States Coast Guard Court of Criminal Appeals
affirmed the findings and sentence. United States v. Smith, 66
M.J. 556, 563 (C.G. Ct. Crim. App. 2008). We review a military
judge’s decision to admit or exclude evidence for an abuse of
discretion. United States v. Ayala, 43 M.J. 296, 298 (C.A.A.F.
1995). In doing so, we review findings of fact under the clearly
erroneous standard and conclusions of law under the de novo
standard. Id.
Discussion
The evidence at issue was proffered to attack SR’s
credibility by establishing that she had earlier made a false
allegation of a nonconsensual sexual encounter to protect her
Coast Guard career. Before addressing the M.R.E. 412 issue, it
is worth noting that there is some question as to whether M.R.E.
412 even applies to this type of evidence. The Drafters’
Analysis to M.R.E. 412 states “[e]vidence of past false
complaints of sexual offenses by an alleged victim of a sexual
offense is not within the scope of this Rule and is not
objectionable when otherwise admissible.” Manual for Courts-
Martial, United States, Analysis of the Military Rules of
United States v. Smith, No. 08-0719/CG
5
Evidence app. 22 at A22-36 (2008 ed.).2 However, given the
posture of this case on appeal, and assuming that M.R.E. 412
does apply, the evidence is clearly admissible under the M.R.E.
412 analysis.
1. Objections Under M.R.E. 412
“[A] criminal defendant states a violation of the
Confrontation Clause by showing that he was prohibited from
engaging in otherwise appropriate cross-examination designed to
show a prototypical form of bias on the part of the witness, and
thereby ‘to expose to the jury the facts from which jurors . . .
could appropriately draw inferences relating to the reliability
of the witness.’” Delaware v. Van Arsdall, 475 U.S. 673, 680
(1986) (citing Davis v. Alaska, 415 U.S. 308, 318 (1974)).
“[E]xposure of a witness’ motivation in testifying is a proper
and important function of the constitutionally protected right
of cross-examination.” Id. at 678-79. “The question is whether
‘[a] reasonable jury might have received a significantly
different impression of [the witness’s] credibility had [defense
counsel] been permitted to pursue his proposed line of crossexamination.’”
United States v. Collier, 67 M.J. 347, 352
2 See also Fed. R. Evid. 412 advisory committee’s note on
proposed 1994 amendment (“Evidence offered to prove allegedly
false prior claims by the victim is not barred by Rule 412.
However, the evidence is subject to the requirements of Rule
404.”).
United States v. Smith, No. 08-0719/CG
6
(C.A.A.F. 2009) (brackets in original) (quoting Van Arsdall, 475
U.S. at 680).
“M.R.E. 412 was intended to protect victims of sexual
offenses from the degrading and embarrassing disclosure of
intimate details of their private lives while preserving the
constitutional rights of the accused to present a defense.”
United States v. Banker, 60 M.J. 216, 219 (C.A.A.F 2004). There
are, however, three exceptions to the exclusionary provisions of
M.R.E. 412. Smith relied on the third exception that requires
the admission of evidence “the exclusion of which would violate
the constitutional rights of the accused.” M.R.E. 412(b)(1)(C).
“This exception addresses an accused’s Sixth Amendment right of
confrontation and Fifth Amendment right to a fair trial.”
Banker, 60 M.J. at 221 (citations omitted) (emphasis added).
Banker requires that “where evidence is offered pursuant to this
exception, it is important for defense counsel to detail an
accused’s theory of relevance and constitutional necessity.” 60
M.J. at 221. Smith’s counsel did just that in this case.
2. Relevance and Materiality
In order to properly determine whether evidence is
admissible under the constitutionally required exception the
military judge must evaluate whether the proffered evidence is
relevant, material, and favorable to the defense. Id. at 222.
“[T]he relevancy portion of this test is the same as that
United States v. Smith, No. 08-0719/CG
7
employed for the other two exceptions of the rule,” which is
that “[e]vidence is relevant if it has ‘any tendency to make the
existence of any fact . . . more probable or less probable than
it would be without the evidence.’ M.R.E. 401.” Id. at 222.
The proffered evidence could have impacted SR’s credibility by
allowing the defense to provide a commonsense explanation for SR
to give false testimony. That is, when SR learned of the
investigation of Smith for alleged sexual offenses, she became
concerned that the investigation would produce allegations that
she had engaged in prohibited sexual activity3 with Smith in
their dormitory at the Coast Guard Academy, thereby jeopardizing
her own career. Thus, she fabricated the charges against Smith
to protect her career, as she had in the past for the same
reason. The military judge found that the evidence would be
relevant and I agree.
Having found the evidence relevant, the next step for the
military judge was to determine whether the evidence was
“material and favorable to the accused’s defense, and thus
whether it is ‘necessary’.” Id. at 222 (citing United States v.
Williams, 37 M.J. 352, 361 (C.M.A. 1993)).
3 Pursuant to Regulations for the Code of Cadets 4-5-05.a.3,
sexual conduct is prohibited on Coast Guard Academy
installations even if it is between consenting cadets. Cadets
found guilty of consensual sexual misconduct can be disenrolled.
Id. at 4-5-05.a.4.
United States v. Smith, No. 08-0719/CG
8
In determining whether evidence is material, the
military judge looks at “the importance of the issue
for which the evidence was offered in relation to the
other issues in this case; the extent to which this
issue is in dispute; and the nature of the other
evidence in the case pertaining to this issue.”
Id. (quoting United States v. Colon-Angueira, 16 M.J. 20, 26
(C.M.A. 1983)).
There can be no dispute that testing the credibility of a
witness through cross-examination is crucial to the right of
confrontation.
A more particular attack on the witness’ credibility
is effected by means of cross-examination directed
toward revealing possible biases, prejudices, or
ulterior motives of the witness as they may relate
directly to issues or personalities in the case at
hand. The partiality of a witness is subject to
exploration at trial, and is “always relevant as
discrediting the witness and affecting the weight of
his testimony.” 3A J. Wigmore, Evidence § 940, p. 775
(Chadbourn rev. 1970). We have recognized that the
exposure of a witness’ motivation in testifying is a
proper and important function of the constitutionally
protected right of cross-examination.
Davis v. Alaska, 415 U.S. 308, 316 (1974) (citation omitted).
As in United States v. Dorsey, 16 M.J. 1, 7 (C.M.A. 1983),
this was a “he said -- she said” case and for the charges at
issue in this appeal,4 the critical question for the members was
the credibility of the sole prosecution witness. Evidence of a
motive to fabricate and that SR had alleged that an earlier
consensual sexual encounter was nonconsensual in an attempt to
4 Sodomy, extortion, and indecent assault.
United States v. Smith, No. 08-0719/CG
9
protect her career bears directly on SR’s credibility as to the
allegations she made against Smith. It may have shown that SR
had a propensity to lie about consensual sexual encounters when
her career was on the line. The materiality of this evidence is
not the “lurid nuances of the victim’s sexual past” as noted by
the majority, but rather the allegation that SR had previously
lied about a sexual encounter under similar circumstances.
3. Balancing
Once the military judge has determined that the proffered
evidence is relevant and material, the military judge must
undertake the M.R.E. 412 balancing test to determine if the
evidence is favorable to the accused’s defense.5 Banker, 60 M.J.
at 222. The term favorable is synonymous with vital. Id.
“[W]hen balancing the probative value of the evidence against
the danger of unfair prejudice under M.R.E. 412, the military
judge must consider . . . factors such as confusion of the
issues, misleading the members, undue delay, waste of time,
5 Commentators have noted that the “constitutionally required”
exception may be unnecessary since once it is established that
the evidence is constitutionally required, there can be no
further limitation on its admission. See 1 Stephen A. Saltzburg
et al., Military Rules of Evidence Manual § 412.02[4], at 4-194
(6th ed. 2006) (“Any limitation on a constitutional right would
be disregarded whether or not such a Rule existed.”);
Christopher B. Mueller & Laird C. Kirkpatrick, Federal Evidence
§ 4:81, at 306 (3d ed. 2007) (“The exception is arguably
unnecessary because Fed. R. Evid. 412 is subordinate to the
Constitution anyway, but perhaps including it diminishes the
sense of conflict between the two legal standards.”).
United States v. Smith, No. 08-0719/CG
1 0
needless presentation of cumulative evidence, [and] also
prejudice to the victim’s legitimate privacy interests.” Id. at
223. The M.R.E. 412 balancing test weighs in Smith’s favor.
Under the circumstances of this case, any risk of confusion of
the issues, misleading the members, wasting time, or presenting
cumulative evidence was minimal and is outweighed by the high
probative value of this evidence.
In Dorsey the court found evidence favorable when it
“undermined the credibility of the sole prosecution witness who
directly testified to appellant’s guilt of the charged offense.”
Dorsey, 16 M.J. at 7. In a similar fashion, admission of a
prior false allegation of a nonconsensual sexual encounter could
have undermined the credibility of SR, the only witness who
testified against Smith on the extortion, sodomy, and indecent
assault charges.
While the evidence of SR’s earlier allegation of a false
nonconsensual sexual encounter and her subsequent admission that
the encounter was consensual would have impacted her privacy
interests, withholding this constitutionally required evidence
from the panel deprived Smith of his best opportunity to provide
a motive for SR’s allegations and to challenge her credibility.
The fact that the military judge allowed the panel to hear that
SR had a secret that, if revealed could have an adverse impact
on her Coast Guard career, including possibly disciplinary
United States v. Smith, No. 08-0719/CG
1 1
action under the UCMJ, was simply not sufficient. With this
limited information about SR’s secret, the members were left to
speculate whether the secret was a minor disciplinary infraction
or a more serious charge, but they had no idea that the
proffered evidence directly implicated SR’s motive and
credibility.6
In Collier this court found the military judge erred in
limiting cross-examination of the complaining witness for
possible bias. Collier, 67 M.J. at 349. There, the defendant
attempted to establish bias by presenting evidence of the
existence of a romantic relationship that ended badly between
the accused and the complaining witness. Id. at 351. The
military judge only allowed cross-examination as to the “breakup
of a friendship.” Id. at 351-52. This court found that there
was a qualitative difference between the two situations and if
the members had been shown evidence of the romantic relationship
they might have had a significantly different impression of the
accusing witness’ credibility. Id. at 352, 353. Similarly,
there is a qualitative difference between an undisclosed
6 Trial counsel illustrated the range of incidents that the
members could have speculated on when, at one point during his
argument on the motion, he stated that while the existence of
the secret was extremely relevant, the content of the secret was
not. Trial counsel argued, “[t]he extortion charge is that
there was a secret. It doesn’t matter if that secret was
whether she liked Smarties. It doesn’t matter if she had
committed some other felony . . . .”
United States v. Smith, No. 08-0719/CG
1 2
situation that “could have had an adverse impact on [SR’s] Coast
Guard career” and an allegation that SR had previously made a
false allegation of a nonconsensual sexual encounter to protect
her career.
While the military judge found that the evidence was not
strong because it came from Smith, who had an obvious bias, it
is well established that “[t]he weight and credibility of the .
. . witness are matters for the members alone to decide.”
United States v. Moss, 63 M.J. 233, 239 (C.A.A.F. 2006) (citing
United States v. Bins, 43 M.J. 79, 85 (C.A.A.F. 1995)). The
court in Banker noted that the role of the military judge is to
assure that the evidence meets the usual evidentiary standards.
Banker, 60 M.J. at 224 (citing United States v. Platero, 72 F.3d
806, 812 (10th Cir. 1995)). The court in Platero went on to
say, “when the Judge decides whether or not a defense is true or
false and decides that on the basis of the credibility of the
witnesses, the Judge is doing what the jury is supposed to do in
a serious criminal case covered by the Sixth Amendment.”
Platero, 72 F.3d at 812.
Smith had a commonsense explanation for SR’s claim that the
sexual activity was nonconsensual and the military judge’s
ruling prevented the members from considering this theory. The
alleged false accusation was close in time to the allegation
made against Smith, both allegations involved military members
United States v. Smith, No. 08-0719/CG
1 3
and both situations presented a motive for SR to lie about the
consensual nature of her sexual activities to protect her
career. Putting aside the fact that M.R.E. 412 may not even
apply to this type of evidence, I would conclude that the
evidence should have been admitted under M.R.E. 412. I would
further find that the error was not harmless beyond a reasonable
doubt as it essentially deprived Smith of his best defense and
“the excluded evidence may have tipped the credibility balance
in [Smith’s] favor.” Moss, 63 M.J. at 239.
I would reverse the decision of the United States Coast
Guard Court of Criminal Appeals and set aside the findings and
sentence for Additional Charge I, Specification 1 of Additional
Charge II, and Additional Charge III, and remand the case for
further proceedings, if any.

Will The Supreme Court Overturn ObamaCare?

2010-03-28T03:26:00.000-07:00

Many people believe that the Supreme Court will declare President Omama's Health Care Law unconstitutional. Former New Jersey Superior Court Judge, Andrew P. Napolitano, is one of the most vocal. According to Judge Napolitano "President Barack Obama is one of the worst presidents ever in terms of respecting constitutional limitations on government, and the states suing the federal government over healthcare reform "have a pretty strong case" and are likely to prevail."

Napolitano says the president's healthcare reforms amount to "commandeering" the state legislatures for federal purposes, which the Supreme Court has forbidden as unconstitutional.

"The Constitution does not authorize the Congress to regulate the state governments," Napolitano says. "Nevertheless, in this piece of legislation, the Congress has told the state governments that they must modify their regulation of certain areas of healthcare, they must surrender their regulation of other areas of healthcare, and they must spend state taxpayer-generated dollars in a way that the Congress wants it done. That's called commandeering the legislature," he says. "That's the Congress taking away the discretion of the legislature with respect to regulation, and spending taxpayer dollars. That's prohibited in a couple of Supreme Court cases. So on that argument, the attorneys general have a pretty strong case and I think they will prevail.”

The longstanding precedent of state regulation of the healthcare industry makes the new federal regulations that much more problematic.

"The Supreme Court has ruled that in areas of human behavior that are not delegated to the Congress in the Constitution, and that have been traditionally regulated by the states, the Congress can't simply move in there," Napolitano says. "And the states for 230 years have had near exclusive regulation over the delivery of healthcare. The states license hospitals. The states license medications. The states license healthcare providers whether they're doctors, nurses, or pharmacists. The feds have had nothing to do with it.

"The Congress can't simply wake up one day and decide that it wants to regulate this. I predict that the Supreme Court will invalidate major portions of what the president just signed into law…"

The judge also says he would rate President Obama as one of the worst presidents in terms of obedience to constitutional limitations.

"I believe we have a one party system in this country, called the big-government party," Napolitano says. "There is a Republican branch that likes war and deficits and assaulting civil liberties. There is a Democratic branch that likes welfare and taxes and assaulting commercial liberties.

"President Obama obviously is squarely within the Democratic branch. The president who had the least fidelity to the Constitution was Abraham Lincoln, who waged war on half the country, even though there's obviously no authority for that, a war that killed nearly 700,000 people. President Obama is close to that end of lacking fidelity to the Constitution. He wants to outdo his hero FDR."

That is the good news. The bad news is that many of the legal challenges to healthcare reform will have to wait until 2014, when the changes become fully operational.

Until then, there would be no legal case that individuals had been actually harmed by the law. Moreover, Napolitano says it takes an average of four years for a case to work its way through the various federal courts the final hearing that's expected to come before the Supreme Court.

"You're talking about 2018, which is eight years from now, before it is likely the Supreme Court will hear this," he says.

Other issues that Judge Napolitano waxes eloquently concerning are:

He believes American is in danger of becoming "a fascist country," which he defines as "private ownership, but government control." He adds, "The government doesn't have the money to own anything. But it has the force and the threat of violence to control just about anything it wants. That will rapidly expand under President Obama, unless and until the midterm elections give us a midterm correction – which everyone seems to think, and I'm in that group, is about to come our way.
Napolitano believes the federal government lacks the legal authority to order citizens to purchase healthcare insurance. The Congress [is] ordering human beings to purchase something that they might not want, might not need, might not be able to afford, and might not want -- that's never happened in our history before," Napolitano says. "My gut tells me that too is unconstitutional, because the Congress doesn't have that kind of power under the Constitution."
The sweetheart deals in the healthcare reform bill used that persuaded Democrats to vote for it – the Louisiana Purchase, Cornhusker Kickback, Gatorade Exception and others – create "a very unique and tricky constitutional problem" for Democrats, because they treat citizens differently based on which state they live in, running afoul of the Constitution's equal protection clause according to Napolitano. "So these bennies or bribes, whatever you want, or horse trading as it used to be called, clearly violate equal protection by forcing people in the other states to pay the bills of the states that don't have to pay what the rest of us do," Napolitano says.
Exempting union members from the so-called "Cadillac tax" on expensive health insurance policies, while imposing that tax on other citizens, is outright discrimination according to Napolitano. "The government cannot draw a bright line, with fidelity to the Constitution and the law, on the one side of which everybody pays, and the other side of which some people pay. It can't say, 'Here's a tax, but we're only going to apply it to nonunion people. Here's a tax, and we're only going to apply it to graduates of Ivy League institutions.' The Constitution does not permit that type of discrimination."
Politicians from both parties routinely disregard the Constitutional limits imposed on them by the nation's founding document, Napolitano says. "The problem with the Constitution is not any structural problem," says Napolitano. "The problem with the constitution is that those who take an oath to uphold it don't take their oath seriously. For example, just a month ago in interviewing Congressman Jim Clyburn, who's the No. 3 ranking Democrat in the House, I said to him, Congressman Clyburn, can you tell me where in the Constitution the Congress is authorized to regulate healthcare? He said, 'Judge, most of what we do down here,' referring to Washington, 'is not authorized by the Constitution. Can you tell me where in the Constitution we're prohibited from regulating healthcare.' Napolitano says that reflects a misunderstanding of what the Constitution actually is. "He's turning the Constitution on its head, because Congress is not a general legislature," he says. "It was not created in order to right every wrong. It exists only to legislate in the 17 specific, discrete, unique areas where the Constitution has given it power. All other areas of human area are reserved for the states."
Napolitano says that members of Congress infringe on Constitutional rights because they fail to recognize its basis. "They reject Jefferson's argument, in the Declaration of Independence, that our rights come from our Creator, therefore they're natural rights, therefore they can't be legislated away," Napolitano says. "They think they can legislate on any activity, regulate any behavior, tax any person or thing, as long as the politics will let them survive. They're wrong, and with this healthcare legislation, they may be proven wrong, in a very direct and in-your-face way."

10 Ways the New Healthcare Bill May Affect You

The Patient Protection and Affordable Healthcare Act, more commonly referred to as the "healthcare bill", has taken over a year to craft and has been a lightning rod for political debate because it effectively reshapes major facets of the country's healthcare industry.
Here are 10 things you need to know about how the new law may affect you:

1. Your Kids are Covered
Starting this year, if you have an adult child who cannot get health insurance from his or her employer and is to some degree dependent on you financially, your child can stay on your insurance policy until he or she is 26 years old. Currently, many insurance companies do not allow adult children to remain on their parents' plan once they reach 19 or leave school.
2. You Can't be Dropped
Starting this fall, your health insurance company will no longer be allowed to "drop" you (cancel your policy) if you get sick. In 2009, "rescission" was revealed to be a relatively common cost-cutting practice by several insurance companies. The practice proved to be common enough to spur several lawsuits; for example, in 2008 and 2009, California's largest insurers were made to pay out more than $19 million in fines for dropping policyholders who fell ill.

3.Children cannot be denied coverage.
Starting this year your child (or children) cannot be denied coverage simply because they have a pre-existing health condition. Health insurance companies will also be barred from denying adults applying for coverage if they have a pre-existing condition, but not until 2014.
4. You Can Spend What You Need to
Prior to the new law, health insurance companies set a maximum limit on the monetary amount of benefits that a policyholder could receive. This meant that those who developed expensive or long-lasting medical conditions could run out of coverage. Starting this year, companies will be barred from instituting caps on coverage.
5. You Don't Have to Wait
If you currently have pre-existing conditions that have prevented you from being able to qualify for health insurance for at least six months you will have coverage options before 2014. Starting this fall, you will be able to purchase insurance through a state-run "high-risk pool", which will cap your personal out-of-pocket expenses for healthcare. You will not be required to pay more than $5,950 of your own money for medical expenses; families will not have to pay any more than $11,900.
6. You Must be Insured
Under the new law starting in 2014, you will have to purchase health insurance or risk being fined. If your employer does not offer health insurance as a benefit or if you do not earn enough money to purchase a plan, you may get assistance from the government. The fines for not purchasing insurance will be levied according to a sliding scale based on income. Starting in 2014, the lowest fine would be $95 or 1% of a person's income (whichever is greater) and then increase to a high of $695 or 2.5% of an individual's taxable income by 2016. There will be a maximum cap on fines.
7. You'll Have More Options
Starting in 2014 (when you will be required by law to have health insurance), states will operate new insurance marketplaces - called "exchanges" - that will provide you with more options for buying an individual policy if you can't get, or afford, insurance from your workplace and you earn too much income to qualify for Medicaid. In addition, millions of low- and middle-income families (earning up to $88,200 annually) will be able to qualify for financial assistance from the federal government to purchase insurance through their state exchange.
8. Flexible Spending Accounts Will Become Less Flexible
Three years from now, flexible spending accounts (FSAs) will have lower contribution limits - meaning you won't be able to have as much money deducted from your paycheck pre-tax and deposited into an FSA for medical expenses as is currently allowed. The new maximum amount allowed will be $2,500. In addition, fewer expenses will qualify for FSA spending. For example, you will no longer be able to use your FSA to help defray the cost of over-the-counter drugs.
9. If You Earn More, You'll Pay More
Starting in 2018, if your combined family income exceeds $250,000 you are going to be taking less money home each pay period. That's because you will have more money deducted from your paycheck to go toward increased Medicare payroll taxes. In addition to higher payroll taxes you will also have to pay 3.8% tax on any unearned income, which is currently tax-exempt.
10. Medicare May Cover More or Less of Your Expenses
Starting this year, if Medicare is your primary form of health insurance you will no longer have to pay for preventive care such as an annual physical, screenings for treatable conditions or routine laboratory work. In addition, you will get a $250 check from the federal government to help pay for prescription drugs currently not covered as a result of the Medicare Part D "doughnut hole".
However, if you are a high-income individual or couple (making more than $85,000 individually or $170,000 jointly), your prescription drug subsidy will be reduced. In addition, if you are one of the more than 10 million people currently enrolled in a Medicare Advantage plan you may be facing higher premiums because your insurance company's subsidy from the federal government is going to be dramatically reduced.
Conclusion
Over the next few months you will most likely receive information in the mail from your health insurance company about how the newly signed law will affect your coverage. Read the correspondence carefully and don't hesitate to ask questions about your policy; there may be new, more affordable options for you down the road.
(March 29, 2010 K. Rowland said:)
The same Supreme Court justices whom President Obama blasted during his State of the Union address this year may ultimately decide the fate of his crowning achievement as more than a dozen states have called on the courts to strike down the health insurance mandate of Democrats' health care overhaul - a move that would threaten the entire law.

Two major constitutional challenges have been levied against the new law, one by the state of Virginia, which enacted a law exempting its citizens from the federal health insurance mandate, and another by Florida and 12 other states. Legal scholars are divided on the merits of the cases, and even Congress - through its research service and its budget scorekeeper - has said it's an open question whether the provision could pass constitutional muster.

At issue is the scope of the federal government's power over states and individuals. Critics of the law say the requirement that all Americans buy insurance or pay a fine, if allowed, would mean that Congress has virtually boundless authority to compel actions. Proponents argue that legal precedents support an expansive reading of the legislative branch's license to regulate such activity.

"This is one of the most consequential lawsuits in our generation," said Baker Hostetler lawyer David B. Rivkin Jr., who is serving as outside counsel to the 13 states that have filed suit. "The fact you have so many different state attorneys general, Republicans and Democrats, from a variety of states coming together to do this just underscores how strongly they feel that the act infringes core constitutional interests of their respective states."

The mandate, which doesn't take effect until 2014, is central to Democrats' goal of insuring about 32 million more Americans. The law would offer tax credits to low-income individuals and allow young adults to remain on their parents' policies longer.

Both of the state lawsuits challenge the federal government's authority under the Commerce Clause, which grants Congress the power to regulate commerce among the states. The Florida case also cites a violation of the 10th Amendment, which reserves those powers not spelled out under the federal government in the Constitution to the state governments, and argues that the health care law's expansion of state Medicaid programs threatens state sovereignty.

Among the arguments against the law is that because it does not allow for purchasing insurance across state lines - the insurance exchanges are state-based - the buying of health insurance does not constitute interstate commerce. In addition, the plaintiffs say, not purchasing health insurance does not constitute an economic activity.

"Thus far in our history, it has never been held that the Commerce Clause, even when aided by the Necessary and Proper Clause, can be used to require citizens to buy goods or services," Virginia Attorney General Kenneth T. Cuccinelli II argues in his state's lawsuit. "To depart from that history to permit the national government to require the purchase of goods or services would ... create powers indistinguishable from a general police power in total derogation of our constitutional scheme of enumerated powers."

While a requirement to buy health insurance might be new, some legal analysts say, Congress can in fact define an economic activity as something that results from not taking an action.

"The 1964 Civil Rights Act prohibits hotels and restaurants from discriminating based on race and thus prohibits inactivity," said Erwin Chemerinsky, dean of the University of California Irvine School of Law, noting that law relied upon the Commerce Clause. "The Supreme Court has said that Congress can regulate economic activity that has a substantial effect on interstate commerce. Buying or refusing to buy insurance is economic activity. The effect on the economy is enormous."

As an example, Mr. Chemerinsky cited cases in which the high court upheld Congress' authority to regulate the amount of wheat that farmers grow for their own home consumption or prohibit the cultivation of marijuana for medicinal purposes.

"If that fits within the commerce power, surely the health industry does," he said.

Mr. Rivkin, who served in various legal capacities for the Reagan administration and the George H.W. Bush administration, strongly disagreed. If that were the case, he argued, there would be no limits to the government's power as the Founding Fathers intended. He said the cases cited by Mr. Chemerinsky involve the cultivating of commodities and therefore clearly economic activities, unlike the refusal to purchase health insurance.

"The remarkable thing about an individual insurance purchase mandate is you are not being subject to a requirement by virtue of any economic activity you engage in - you're not doing a damn thing; you just exist," he said. "If this is upheld, then the federal government can do everything it wants subject only to the restrictions contained in the Bill of Rights."

Democratic leaders and the White House have scoffed at the legal challenges. Last week, press secretary Robert Gibbs said administration attorneys advised him "we'll win these lawsuits."

Jack M. Balkin, a professor at Yale Law School, noted that the new law structures the mandate as an amendment to the tax code and includes a discussion of the impact on state commerce, suggesting that the administration will defend it by citing the Commerce Clause as well as Congress' power to tax under the "general welfare" provision. That provision says the federal government may impose taxes - in this case, the penalty for those who don't buy insurance would be the tax - in order to provide for the "general welfare" of the country.

Not everyone agrees with that reasoning.

"It is a taxation and spending power, not an open-ended general welfare clause," said Michael W. McConnell, a Stanford law professor and former circuit court judge appointed by President George W. Bush. "And by the way, 'general' had a very specific meaning in the late 18th century - it meant nationwide in scope, which is why some of the state-specific provisions are constitutionally dubious."

Both lawsuits are in federal district courts, but analysts expect the issue to end up before the Supreme Court. If the high court were to rule in favor of the plaintiffs, the ramifications for Congress could be sweeping.

"It would be difficult for the court to hold that the law is outside of the power to tax and spend for the general welfare without calling into question various regulatory devices that both parties use in crafting legislation," Mr. Balkin said. "Since the New Deal, both parties have used the taxing and spending power for a wide range of regulatory purposes and this is what the challenge to the health care bill calls into question."

However, the justices have not been averse to striking down congressional laws favored by Mr. Obama. The president used his State of the Union address to attack, with the justices present, a decision that struck down limits on corporate and union spending for political campaigns on First Amendment grounds.

In his speech, Mr. Obama warned of foreign influence over U.S. elections while Justice Samuel A. Alito Jr. silently mouthed that Mr. Obama was not telling the truth. Chief Justice John G. Roberts Jr., in response to a questioner at a speech some weeks later, called the president's words "very troubling."

ObamaCare, This Dog Won't Hunt.

2010-03-24T08:51:00.000-07:00

Sunday's Socialist Triumph
(By Tony Blankley)
Speaker Nancy Pelosi on Sunday launched the Democrats' argument for the health care bill, claiming, "This is an American proposal that honors the traditions of our country." Does that suggest that opposition is un-American? And what are the traditions that are American that this law fulfills? The Democrats argue that the bill fulfills the "right" of all Americans to government-assured health care services. The congressional Democrats claim many other things that a majority of the country believes to be inconsistent with truth and reality.

At its core, the new law would expand health care to 32 million who lack it. Most of the bill's estimated $938 billion cost for coverage would pay for assistance to help families with annual incomes of up to $88,000 pay for insurance, although small businesses also would receive subsidies as in incentive to cover their employees.

The two bills combined call for nearly $1 trillion in higher taxes and Medicare cuts over 10 years, provisions that sparked strong opposition from congressional Republicans, all of whom voted against the bill's passage.

For the first time, millions of Americans would be required to purchase insurance, and face penalties if they refused.

That requirement was at the heart of much of the opposition to the legislation by Republicans, conservatives activists and others, and 13 attorneys generals have already filed suit to try to invalidate the law.

So, considering the rhetorical onslaught that is about to be unleashed on the public, to paraphrase (and with the deepest apologies to) Winston Churchill on the occasion of the fall of France in June 1940:

What House Minority Leader John A. Boehner has called the Battle of Capitol Hill is over. I expect that the Battle of the Electorate is about to begin. Upon this battle depends the survival of a nonsocialist America. Upon it depends our own American way of life and the long continuity of our institutions and our history. The whole fury and might of the media and the Democratic Party must very soon be trained on the electorate.

If they can stand up to the coming propaganda, America may be free, and the life of the wider free world may move forward into broad, sunlit uplands.

But if the voters succumb to those seven months of blandishments and deceptions, then free America -- including all that we have known and cared for -- will sink into the abyss of a new Dark Age made more sinister, and perhaps more protracted, by the lights of perverted science.

Let the public therefore brace itself to its duties, and so concentrate its mind on the true facts, that if the American spirit of freedom and dignity last for a thousand years, men will still say, "This was the American voters' finest hour."

As I said, apologies to Winston Churchill for borrowing and abusing his immortal words on the fall of France and the beginning of the Battle of Britain.

And yet, for us, now and here is where we must battle for our freedom. Not, pray God, with bullets, but with words and ideas.

This battle will not be fought in the skies over London, but on the Internet and airwaves over America. The target is not the homes and factories of the people, but the minds and judgments of the voters. But the power of a mind confused and misused is every bit as threatening to freedom as is the power of bombs and bullets.

The path to Sunday's catastrophic vote was paved with cynical blandishments by the Democratic Party's congressional leaders to their members. The votes were induced by the assurance that in the seven remaining months before the election, the true facts of their legislation, which led to overwhelming public opposition to the bill when passed -- can be undone in the minds of the voters by remorselessly repeating misconceptions to the public.

The most mendacious, cruel and destructive proposition put forth by the Democratic congressional leadership -- and soon by almost all its ranks and files -- is, of course, the outlandish claim that the bill will reduce the deficit.

The uncontrolled growth of the annual deficits and total public debt is at the crux of the public's slack-jawed horror of Washington policy these past 18 months. Washington is placing our grandchildren's prosperity on a slow boat to China.

Everything that more than 200 years of American invention, investment, labor, suffering and triumph, war and victory has created is being sold off to the world's lowest bidders in a matter of months.

So far, the public has not been fooled by the claim that a new entitlement for 30 million people is being created -- and it will cost less.

But now the Democrats have the Congressional Budget Office's (CBO) official accounting -- and they plan to use it as a shield and a sword as they wade into the public debate.

Of course, every informed person understands why the CBO calculation is an honest measure of a dishonest bill. Republican Rep. Paul Ryan at the health care summit, former CBO Director Douglas Holtz-Eakin, in last Sunday's New York Times, and hundreds of commentators have all laid out the lamentable, indisputable and undisputed fact that the CBO methodology has been gamed by the congressional Democrats to turn what will be more than a trillion dollars in further public deficit and debt into a fantasy savings of $140 billion.
{(The CBO, Congressional Budget Office, is using VOO-DOO Economics.)Editor's Note.}

While Medicare is at about $30 trillion in unfunded liability by 2070, the bill preposterously claims it is going to cut Medicare by half a trillion dollars a decade. The quarter- to half-trillion dollars per 10 years that it will cost to pay Medicare doctors enough to keep them providing services has simply been put in another bill. The mendacities go on and on. They are not merely small, politically useful little deceptions. They are of a dimension that may destroy the republic.

The Democratic congressional leadership seems to have a stunningly insulting view of their potential voters' intelligence. But on such a basis is the battle for the minds of the voters joined.

Never will the wisdom and common sense of the American public have been put to a more fateful test. The organized opposition to the bill must do its best. But, as fitting to a constitutional republic, the fate of American freedom lies with the people.

========

Tony Blankley is executive vice president of Edelman public relations in Washington. E-mail him at TonyBlankley@gmail.com.

More Americans Killed In Mexico.

2010-03-23T02:43:00.000-07:00

MEXICO CITY (AP) — More Americans in Mexico are falling victim to a wave of drug violence sweeping the country, a change driven home by the recent killing of a U.S. Consulate employee and her husband who were gunned down after leaving a children's birthday party.
The number of U.S. citizens killed in Mexico has more than doubled to 79 in 2009 from 35 in 2007, according to the U.S. State Department's annual count. No figures were available for the first two months of 2010.
While only some of the killings are specifically listed as "executions" or "drug-related," the increase in homicides appears to be related to drug battles. In Ciudad Juarez, the northern border city hardest hit by drug violence and where the consulate employee was killed, homicides of Americans rose to 23 in 2009 from two in 2007.
The annual murder rate for the estimated 500,000 American citizens in Mexico at any one time has risen — but still remains lower than in some U.S. cities: about 15 per 100,000. Baltimore's 2009 homicide rate was 37 per 100,000 residents.
American deaths make up only a tiny fraction of Mexico's 17,900 drug-related killings since December 2006, when President Felipe Calderon launched a military-led drug war.
On Saturday, a clash among armed men left eight people dead in the Pacific coast state of Sinaloa. The bodies of seven men were found inside two cars along a highway connecting the cities of Culiacan and Mazatlan, said Sinaloa prosecutors' spokesman Martin Gastelum. An eighth victim, dressed in a fake federal police uniform and holding a grenade, was found near the cars, Gastelum said.
The government says the majority of those killed in Mexico's drug violence were involved in the narcotics trade. But an increasing number of bystanders are dying in the crossfire, and Americans are among them.
Tania Lozoya, 15, of El Paso, Texas, was killed by a stray bullet at her aunt's house across the border in Ciudad Juarez in May 2009, after gunfire broke out when two men chased another man into the backyard of the residence.
In December 2009, a California assistant school principal, Augustin Salcedo, was killed after he was abducted from a restaurant along with five other men while he and his wife were visiting her hometown of Gomez Palacio, in the northern state of Durango. The motive for the mass abduction remains unclear.
Other Americans appear to have been specifically targeted.
U.S. anti-kidnapping expert Felix Batista was abducted by gunmen in December 2008 in the northern city of Saltillo, where he had gone to advise local businessmen on how to avoid becoming victims of the country's wave of kidnappings. He has not been found.
"I see it as, my brother was interfering with their profit margin," said Batista's sister, Jackie Batista. "That's their line of business. Other than drugs, it's kidnapping, so people want to know how to keep themselves safe, and that intrudes into their profit margin."
More than a year after his disappearance, nobody knows for sure who took Batista.
The prosecutors' office in the state of Coahuila, where Saltillo is located, confirmed that no trace of Batista has been found, and they now appear to consider it an inactive case.
"I think that's my biggest fear," Batista said. "That this case will never be resolved. ... Excuse the phrase, and I hate to use it, that it has gone to the grave with those people who were involved."
Americans whose relatives have become victims of Mexico's drug war have established an informal group to support one another and stay informed about what is happening south of the border. "America needs to wake up and smell the kidnappings, smell the drug war," Batista says.
She frequently keeps in touch with San Antonio, Texas resident Jose Esparza, whose two brothers and sister were kidnapped in the northern Mexico town of Cuencame more than a year ago; all were U.S. residents and had spouses or children who are U.S. citizens. As with Felix Batista, there has been no request for ransom, and no sign of the victims.
Esparza says that in Texas alone he has heard from about 10 other people with relatives or friends who disappeared in Mexico.
He and others say they have obtained little or no response from Mexican authorities. Esparza now places his faith in the possibility the U.S. may begin to directly investigate the cases.
"Unless the U.S. government gets involved, nothing is ever going to happen," he said.
FBI officials are aiding Mexican authorities in the investigation into the March 13 killings of U.S. consular employee Lesley A. Enriquez, 35, who was four months pregnant, and her husband, Arthur H. Redelfs, 34.
They were gunned down in their white SUV on a Ciudad Juarez street as they were leaving the birthday party of a child of a U.S. Consulate employee. Their 7-month-old daughter was found wailing in the back of the vehicle.
Investigators are following several lines of investigation as to why gunmen followed the couple's vehicle and a second white SUV that left the same party and was hit in a separate, nearly simultaneous attack. Jorge Alberto Salcido, the husband of a Mexican employee of the consulate, was killed in that assault.
One theory being investigated is that assailants may have been ordered to attack a white SUV, staked out the wrong party and then opened fire on the wrong vehicles.
Another line of investigation is that Redelfs may have been targeted because of his work at an El Paso prison, which is holding several members of the Aztecas gang, believed responsible for the attacks.
More than 200 federal, state and local law enforcement officers swept through El Paso on Thursday, picking up suspected members of the gang in an effort to find new leads in the killings.
Ciudad Juarez Mayor Jose Reyes does not think the victims were targeted because of their U.S. ties. "I do not think this was a message to the consulate," Reyes said.
But Enriquez's cousin Vicky Torres doesn't see it that way.
"It's a message for the United States, like a challenge: 'Don't you mess around, you Americans, because this will happen,'" she said.
Lourdes Batista, the kidnap victim's wife, says she hopes the crimes will be a wake-up call for the American public.
"I pray that it will be," she said. "We're fighting a war across a big ocean, but what about here? What about our neighbor?"

A Good Beginning.

2010-03-21T14:15:00.000-07:00

Caught in the cross-hairs of California's state budget crisis, the Los Angeles Superior Court — the largest trial court system in the nation — this week laid off 329 employees and closed 16 courtrooms. Facing an unprecedented $79 million shortfall, Presiding Judge Charles W. McCoy said that the courts will lay-off an additional 500 workers and shutter up to a total of 50 courtrooms come September. Announcing the cutbacks in a courtroom closed months ago to save money, McCoy said, "Today is a sad day for justice in Los Angeles." With attrition, McCoy expects the 5,400-employee court system to lose approximately 1,000 employees, a 20% reduction.

The 16 closed courtrooms handled criminal, family law, civil law along with complex litigation and small claims case loads. Similar cuts are taking place in courts across the state. McCoy says the 100,000 Angelenos who use the courts each day can expect growing case backlogs, longer lines and delays in processing judgments. Among those losing their jobs: clerks, court reporters and supervisors. Judge Marjorie Steinberg says her family law departments are losing mental health professionals who help parents negotiate their disputes before they go to court: "You can imagine how tough that is on a family, and on the children, whose parents are fighting."

The courts, which make up 2% of the state budget, have thus joined the slash-and-cut regimen that has befallen school districts, cities, and social services across California as the state deals with a $21 billion shortfall this year. (That comes on the heels of last year's $40 billion deficit.)

The trial system will not be affected uniformly. Statutory and constitutional guarantees in the criminal justice system protect the right to a speedy trial, says Allan Parachini, spokesman for the Los Angeles Superior Court, so "we really can't go to the criminal courts for the cuts... what is happening is that resources are being bled out of other areas, especially civil, to make sure we can meet all our obligations in criminal." Ten years ago the average time to trial in a general civil case in Los Angeles County was an eye popping five years. Reforms and increased efficiency reduced the wait to 16 months but Parachini says he expects civil case delays to spike again.

"In addition to the impact on the civil courts, our family and juvenile courts are about to take huge hits," says Don Mike Anthony, president of the Los Angeles County Bar Association. He says custody orders, divorce and child support matters that now take 30 days will soon take four months. In addition, the court will no longer provide financial support and supervising personnel to the Court-Appointed Special Advocates (CASA) program which works on behalf of abused, neglected and abandoned children involved in dependency court matters. Among the mundane cuts, a reduction of the popular night traffic court from twice to once a month.

"We have explored every financial scenario before taking this action, but more than 80% of our budget goes to salaries and benefits, which forces today's drastic measures," said McCoy. With annual court budget deficits expected to be as high as $140 million over the next four years, court officials say up to 1,800 staff positions may be eliminated. Last year, the California judicial council instituted a one-day per month closure of all state courts as both a cost-savings.
A series of unprecedented statewide court closures one day each month, while necessary to deal with California's budget crisis, will also bring unwanted case delays to thousands beginning this week, San Francisco's presiding superior court judge said today.

"This is not a proud day for us," Judge James McBride said at a news conference at San Francisco's civil courthouse. The court is one of several in San Francisco and throughout California that will close this Wednesday, and every third Wednesday through June of next year.

But McBride said the decision, made in July by the California Judicial Council, which oversees the state court system, was "the only rational choice to make," as opposed to "massive layoffs" of experienced court employees or cuts in court programs.

The closures, the equivalent of a new court holiday during which employees will not be paid, will affect each of the superior courts of California's 58 counties, as well as the six regional appeals courts and the California Supreme Court.

"We will be, in that week, cramming five days' work into four," McBride said.

"The work's not going to go away," he said.

The Judicial Council ordered the furlough days to help close the state judicial system's estimated $414 million deficit, which McBride called a "devastating crash in our budget."
The closures will save an estimated $94.3 million.

Many state judges, including in San Francisco, have also reportedly agreed to voluntary 5-percent salary givebacks to the courts. Superior court judges in California are paid approximately $179,000 per year.

"The unintended yet inevitable symbolism of 'Closed' signs on our courthouses — institutions that embody our nation's revered democratic ideas — is a graphic indication of the severity of California's economic crisis," said California Chief Justice Ronald George addressing the state legislature last year. "For many Californians the courts represent their primary — and sometimes their most important — interaction with state government. Courts are not a luxury to be funded in good times and ignored in bad times."

Meanwhile, the negative economic ripple effect of cuts to the Los Angeles civil courts could result in a nearly $30 billion hit to the local economy over the next four years, according to a study commissioned by the Los Angeles Superior Court. According to the study, the legal services industry would take an estimated $13 billion loss and businesses operating in uncertainty, because of pending civil disputes, would accumulate another $15 billion in potential losses. The decline in economic activity would then result in an additional $1.6 billion in losses.

A Sacramento judge who fought the once-a-month court closures by the state Judicial Council said the action is unwarranted locally and will result in monstrous new backlogs.

Superior Court Judge Maryanne G. Gilliard said the state could have made up the $94.3 million saved with the closures by cutting the Judicial Council's operational arm, the Administrative Office of the Courts, and scrapping a $1.1 billion computer system that many local judges have harshly criticized.

"I think that statewide closure of the courts by order of the Judicial Council is unprecedented and, beyond that, is unwarranted, especially in light of the fact that there are obvious areas in the AOC's own budget that could have been tapped in order to not restrict the public's constitutional right of access to their courts," Gilliard said in an interview in her chambers.

"This was an unnecessary order," she said.

The judge blasted the growth of the court administrative office's budget from $100 million to $177 million over the past five years and its increase in employees from 491 to 785. Agency officials have defended the increases as a reflection of their taking over executive authority for court operations throughout the state.

Gilliard said that as many as 20 county court systems in the state, including Sacramento's, have the resources to stay in operation and avoid the closures.

"We could keep our doors open, but we're being told we have to shut down because it's more important that there be uniformity rather than access to justice and the courts for those counties able to do so," she said.

In Sacramento, backlogged local courts have forced civil trials into years-long delays and Gilliard said the shutdown will extend delays to other areas.

"Let's talk about abused and neglected children whose cases are going to be delayed," Gilliard said. "Let's talk about crime victims. Let's talk about those accused of crimes. Let's talk about jurors who could be very well in the midst of deliberations on a murder trial being told they have to go home.

"It is significant, and the public should be aware that the Thursday after the Wednesday shutdowns, it's going to be monstrous in terms of dealing with the press of cases (that) we're not going to be able to get to on Wednesday," she said.

An LA Times editorial said that: With the potentially catastrophic effects of court closures and layoffs on our economy, you'd think that the Judicial Council, the statewide body that oversees courts, and its administrative agency, the AOC, would make solving this problem their top priority.

Unfortunately, the AOC and the Judicial Council have busied themselves with other tasks. An unfinished, $2-billion IT project, for example, has mushroomed over the last several years to more than five times its originally projected cost. There's no direct oversight of AOC's budget, no independent audits, no access to its internal records and no whistle-blowing protection for staff. In short, it's an entity that receives special legal protection by the state to operate outside the realm of public scrutiny and accountability, a status the justices who oversee it fiercely protect. The problem is so bad that in just one year, and with no staffing or budget, an organization of dissident judges who want more accountability for the AOC and Judicial Council has already signed on more than 10% of all state judges.

U.S. Consulate Workers Killed In Mexico Drug War.

2010-03-15T02:12:00.000-07:00

First there was Bobby Salcedo form El Monte, California on New Year's Eve 2010. Being a School Board Member he was the first American elected official to be murdered in Mexico. On 13 March the Mexican Drug murders of Americans took an ominous turn.

The drug wars in Mexico took an ominous turn when a U.S. consulate employee and her husband were killed as they left a children's birthday party in Ciudad Juarez, Mexico's most violent city. Only minutes earlier gunmen also killed the Mexican husband of another member of the consular staff and wounded his two children.

While a number of US citizens have been killed in Mexico's increasingly bloody drug wars between rival cartels, it is the first time an American government employee has been killed.

President Barack Obama has expressed outrage over the killings, and Mexican President Felipe Calderon promised a swift investigation.

The three died during one of the bloodiest weekends so far in Mexico, with nearly 50 people murdered in gang violence. Another 13 people were killed in a gangland shoot-out in the Pacific resort city of Acapulco on Sunday.

The US consulate employee and her husband, identified as Lesley Enriquez, 35, and Athur Redelfs, 39, were shot to death on Saturday 13 March 2010 in their car near the Santa Fe International bridge linking Ciudad Juarez with El Paso, Texas.

According to the newspaper Diario de Juarez, gunmen chased the couple's white van shortly after 2 p.m. on Saturday, shooting at the vehicle until it swerved out of control, crashing into oncoming traffic near the bridge.

Ms Enriquez, who was four months pregnant with the couple's second child, was shot in the head, while her husband was shot in his neck and arm. When police officers arrived at the victims' bullet-riddled Toyota van, they discovered the couple's baby daughter crying disconsolately in the back seat, Diario de Juarez reported. At first the officers thought the seven-month-old girl had been wounded, but she was unharmed.

"This is shocking to everyone," Reuben Redelfs, the brother of the victim, told the Washington Post. "People need to know what's going on down here. It's become a war zone ..... It's just horrible what's happening."

At approximately the same time, the third victim, Jorge Alberto Salcido Ceniceros, 37, was killed as he travelled in another part of Juarez. The gunmen boxed in the man's car, shot him and wounded his two children, aged four and seven, according to media reports.

The attacks occurred as the US State Department was taking the unusual step of authorizing U.S. government employees at Ciudad Juarez and five other American consulates in northern Mexico to send their families out of the region because of concerns over the increasing bloodshed. That announcement was in the works before the murders, officials said.

President Obama was "deeply saddened and outraged" by the killings, the White House said.

"He extends his condolences to the families and condemns these attacks on consular and diplomatic personnel serving at our foreign missions," a White House statement said. "In concert with Mexican authorities, we will work tirelessly to bring their killers to justice."

Mr Calderon's office said the Mexican president "expresses his indignation" and "his sincerest condolences to the families of the victims." He "reiterated the Mexican government's unwavering compromise to resolve these grave crimes."

US Secretary of State Hillary Clinton extended her sympathy to the families of the victims and said Washington would continue to work with the Mexican government to bring drug traffickers to justice.

"These appalling assaults on members of our own State Department family are, sadly, part of a growing tragedy besetting many communities in Mexico," said Mrs Clinton. Washington was committed to: "work closely with the government of President Calderon to cripple the influence of trafficking organizations at work in Mexico," she said.

Ciudad Juarez a city of 1.3 million people just across the US border from El Paso, is at the epicentre of the drug wars that have devastated Mexico over recent years. In the last three years alone, 15,000 people have been murdered, many of them in turf wars between rival drug gans.

At least 18,000 people have been killed in Mexico since December 2006, when Mexican President Felipe Calderon deployed the army to battle increasingly powerful traffickers.

Alarmed by the brazen shootings, the State Department announced Sunday that employees at a string of U.S. consular offices along the Mexican border — Tijuana, Nogales, Ciudad Juárez, Nuevo Laredo, Monterrey and Matamoros — could evacuate their families to the United States.

The consular agency in Reynosa was temporarily closed in recent weeks after violence in that city grew.

Strengthening its travel warning for Mexico, the State Department said, "While most crime victims are Mexican citizens, the uncertain security situation poses serious risks for U.S. citizens as well."

Social Security to Start Cashing Federal Government's IOUs

2010-03-15T02:07:00.000-07:00

PARKERSBURG, W.Va. – The retirement nest egg of an entire generation is stashed away in this small town along the Ohio River: $2.5 trillion in IOUs from the federal government, payable to the Social Security Administration.

It's time to start cashing them in.

For more than two decades, Social Security collected more money in payroll taxes than it paid out in benefits — billions more each year.

Not anymore. This year, for the first time since the 1980s, when Congress last overhauled Social Security, the retirement program is projected to pay out more in benefits than it collects in taxes — nearly $29 billion more.

Sounds like a good time to start tapping the nest egg. Too bad the federal government already spent that money over the years on other programs, preferring to borrow from Social Security rather than foreign creditors. In return, the Treasury Department issued a stack of IOUs — in the form of Treasury bonds — which are kept in a nondescript office building just down the street from Parkersburg's municipal offices.

Now the government will have to borrow even more money, much of it abroad, to start paying back the IOUs, and the timing couldn't be worse. The government is projected to post a record $1.5 trillion budget deficit this year, followed by trillion dollar deficits for years to come.

Social Security's shortfall will not affect current benefits. As long as the IOUs last, benefits will keep flowing. But experts say it is a warning sign that the program's finances are deteriorating. Social Security is projected to drain its trust funds by 2037 unless Congress acts, and there's concern that the looming crisis will lead to reduced benefits.

"This is not just a wake-up call, this is it. We're here," said Mary Johnson, a policy analyst with The Senior Citizens League, an advocacy group. "We are not going to be able to put it off any more."

For more than two decades, regardless of which political party was in power, Congress has been accused of raiding the Social Security trust funds to pay for other programs, masking the size of the budget deficit.

Remember Al Gore's "lockbox," the one he was going to use to protect Social Security? The former vice president talked about it so much during the 2000 presidential campaign that he was parodied on "Saturday Night Live."

Gore lost the election and never got his lockbox. But to illustrate the government's commitment to repaying Social Security, the Treasury Department has been issuing special bonds that earn interest for the retirement program. The bonds are unique because they are actually printed on paper, while other government bonds exist only in electronic form.

They are stored in a three-ring binder, locked in the bottom drawer of a white metal filing cabinet in the Parkersburg offices of Bureau of Public Debt. The agency, which is part of the Treasury Department, opened offices in Parkersburg in the 1950s as part of a plan to locate important government functions away from Washington, D.C., in case of an attack during the Cold War.

One bond is worth a little more than $15.1 billion and another is valued at just under $10.7 billion. In all, the agency has about $2.5 trillion in bonds, all backed by the full faith and credit of the U.S. government. But don't bother trying to steal them; they're nonnegotiable, which means they are worthless on the open market.

More than 52 million people receive old age or disability benefits from Social Security. The average benefit for retirees is a little under $1,200 a month. Disabled workers get an average of $1,100 a month.

Social Security is financed by payroll taxes — employers and employees must each pay a 6.2 percent tax on workers' earnings up to $106,800. Retirees can start getting early, reduced benefits at age 62. They get full benefits if they wait until they turn 66. Those born after 1960 will have to wait until they turn 67.

Social Security's financial problems have been looming for years as the nation's 78 million baby boomers approached retirement age. The oldest are already there. As that huge group of people starts collecting benefits — and stops paying payroll taxes — Social Security's trust funds will shrink, running out of money by 2037, according to the latest projection from the trustees who oversee the program.

The recession is making things worse, at least in the short term. Tax receipts are down from the loss of more than 8 million jobs, and applications for early retirement benefits have spiked from older workers who were laid off and forced to retire.

Stephen C. Goss, chief actuary for the Social Security Administration, says the crisis has been years in the making. "If this helps get people to look more seriously at that in the nearer term, that's probably a good thing. But it's only really a punctuation mark on the fact that we have longer-term financial issues that need to be addressed."

In the short term, the nonpartisan Congressional Budget Office projects that Social Security will continue to pay out more in benefits than it collects in taxes for the next three years. It is projected to post small surpluses of $6 billion each in 2014 and 2015, before returning to indefinite deficits in 2016.

For the budget year that ends in September, Social Security is projected to collect $677 million in taxes and spend $706 million on benefits and expenses.

Social Security will also collect about $120 billion in interest on the trust funds, according to the CBO projections, meaning its overall balance sheet will continue to grow. The interest, however, is paid by the government, adding even more to the budget deficit.

While Congress must shore up the program, action is unlikely this year, said Rep. Earl Pomeroy, D-N.D., who just took over last week as chairman of the House subcommittee that oversees Social Security.

"The issues required to address the long-term solvency needs of Social Security can be done in a careful, thoughtful and orderly way and they don't need to be done in the next few months," Pomeroy said.

The national debt — the amount of money the government owes its creditors — is about $12.5 trillion, or nearly $42,000 for every man, woman and child in the country. About $8 trillion has been borrowed in public debt markets, much of it from foreign creditors. The rest came from various government trust funds, including retirement funds for civil servants and the military. About $2.5 trillion is owed to Social Security.

Good luck to the politician who reneges on that debt, said Barbara Kennelly, a former Democratic congresswoman from Connecticut who is now president of the National Committee to Preserve Social Security and Medicare.

"Those bonds are protected by the full faith and credit of the United States of America," Kennelly said. "They're as solid as what we owe China and Japan."

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Treasury Dept Targets Older Americans On Fixed Income.

2010-03-09T13:23:00.000-08:00

Social Security Checks Getting Smaller
Govt to Collect Old Loans and Debts from Social Security Benefits

A little–noticed law could soon result in smaller Social Security checks for hundreds of thousands of the elderly and disabled who owe the U.S. money from defaulted loans and other debts more than a decade old.

Social Security benefits are off–limits to creditors, such as credit–card companies and banks. But the U.S. can collect debts to federal agencies by "offsetting," or withholding Social Security and disability payments.

The Treasury currently withholds benefits of 3.1 million Social Security recipients to recover defaulted student–, farm– and small–business loans, unpaid income taxes, amounts veterans owe for health care, and other debts to the government.

Previously, the U.S. hasn't been able to withhold Social Security payments to recover most debts delinquent for more than ten years.

But a provision in the 2008 Farm Bill lifted the ten–year statute of limitations on the government's ability to withhold Social Security benefits in collecting debts other than student loans—for which the statute of limitations was lifted in 1997—and income taxes, where the limit remains 10 years.

This means that a person who defaulted on a small–business loan in 1995, for example, and who is receiving Social Security could be notified that his benefits may be reduced each month until the debt, with interest, fees, and penalties, is paid. The Treasury can withhold 15% of the benefit, though it can't be reduced to below $750. Tax debts have no floor.

The change will add more than $6 billion to the $75 billion in delinquent debt individuals owe the government, according to the Financial Management Service, the Treasury's debt collection unit.

A Treasury spokesman says the new legislation "allows Treasury's Financial Management Service to collect older debts and levels the playing field so that all eligible debts, regardless of age, are subject to debt collection. Treasury expects this legislation will result in increased collections of $10 million per year in delinquent federal non–tax debt."

Though no one argues that people shouldn't repay their debts, the change is coming at a challenging time for older Americans already pinched by mortgage woes, pension cuts and spiraling medical costs.

The shift applies to debtors of all ages, but Social Security recipients will bear much of the brunt. A Wall Street Journal analysis of Treasury Department data shows that Social Security recipients comprise a large and growing percentage of people from whom the Treasury recovers debts.

For years, most debt the Treasury collected through its "Offset Program," came from withholding income–tax refunds. But with an aging population and growing unemployment, roughly 10% of the $4.3 billion in debts collected by the Treasury came from Social Security benefits in 2008, the latest figures available. That's up from 1.6% in 2001, according to Journal computations that the Treasury confirms.

Though the law has expanded the age of debts that can be recovered, it hasn't addressed the sometimes–Kafkaesque process debtors can face when challenging the validity of a claim.

Consider the predicament of Dr. Robert Steinberg, the founder of Scharffen Berger chocolates, who spent more than six years and thousands of dollars in legal fees appealing the Social Security Administration's claim that he owed it more than $28,000.

Dr. Steinberg received disability benefits in the early 1990s while undergoing chemotherapy for lymphoma, a condition that ultimately claimed his life. Dr. Steinberg returned to work sporadically at a free clinic before co–founding the chocolate company.

Year later, the Social Security Administration notified Dr. Steinberg he was overpaid in the 1990s. In May 2002, with the matter still unresolved, the agency turned the debt over to the Treasury for collection.

In Oct. 2002, administrative law judge Gary Lee found that the Social Security Administration had never established the amount of the overpayment; had dismissed an earlier appeal "for spurious reasons"; had misinformed Dr. Steinberg and mishandled his later appeals; and had lost his file. He noted that Dr. Steinberg was "without fault," and told the agency to stop its collections efforts.

Dr. Steinberg died in 2008, at 61. His lawyer, Peter Young, a former staff attorney for the Social Security Administration, has handled more than 100 overpayment cases, "very few of which were accurate," he says. "Most people can't find or afford help, and give up very quickly and end up with painful offsets on a fixed budget."

An agency spokeswoman says mistakes can happen, but "over all, the process works."

A Treasury spokesman says the new regulations require agencies seeking to recover debts more than a decade old to give debtors the right to review and copy their files, make payment arrangements, and apply for disability and hardship waivers.

But a recent dispute about a student loan shows that even with these rights, a person challenging an old debt can face hurdles similar to homeowners in foreclosure trying to modify a loan that has been resold.

In 2003, the U.S. began withholding $173 a month in Social Security benefits from Annie Brown, a paralyzed 75–year–old widow living in a nursing home to repay a defaulted $8,823 student loan the Education Department says she took out in 1989. The offset reduced Mrs. Brown's benefit to about $980 a month.

Mrs. Brown said a granddaughter had forged her signature on a loan application. Her daughter and a lawyer spent more than four years disputing the debt with the owner of the loan, United Student Aid Funds, a student–loan guarantor that also was acting as one of the Education Department's 21 debt collectors. USA Funds itself farms out various debt–collection activities to others, which it did in Mrs. Brown's case.

Between 2003 and 2008, Mrs. Brown's daughter and Lynn Drysdale, a legal–aid lawyer in Jacksonville, Fla., corresponded numerous times with USA Funds and two other debt–collection companies it hired. One letter from USA Funds warned that unless documents were received "within 30 days from the date this letter was generated...your case will be closed." The letter was undated. Another letter required Mrs. Brown to refer to an attached document. There was no attachment. "I don't know how a lay person could maneuver through this process," says Ms. Drysdale. "Nobody seemed to know what was needed."

In 2007, USA Funds denied Mrs. Brown's claim, citing a recently passed federal rule requiring people claiming identity theft on student loans to obtain a criminal court verdict of the crime. That was impossible for Mrs. Brown; a statute of limitations for bringing a case had passed years earlier. In any case, she wasn't alleging identity theft, but forgery.

Robert Murray, a spokesman for USA Funds, agrees that Mrs. Brown's signature was forged. "It's absolutely a forgery," he says, "It \[the loan\] should never have been made."

But he says that USA Funds couldn't discharge the loan as a forgery because Mrs. Brown didn't return a required form in 2005, and that USA Funds must rigorously defend claims. "There are borrowers who want to get out of a legitimate debt," he says. "By the same token, we want to work with individuals who have a legitimate issue."

Ms. Drysdale, the legal–aid lawyer, finally sought to obtain a disability waiver for her client. That process took more than a year, and was achieved only after Ms. Drysdale asked for help from the Social Security Administration's ombudsman, who declined to comment.

In August 2009, the Education Department agreed that Mrs. Brown is permanently disabled, and discharged her obligation to repay the loan she never took out. The Treasury returned her withheld benefits in December.
by Ellen E. Schultz
Write to Ellen E. Schultz at ellen.schultz@wsj.com

Almost the Secretary of Homeland Security Goes To Jail.

2010-02-18T13:50:00.000-08:00

Bernard Kerik, 54, who as head of the New York City's police worked closely with former Mayor Rudolph Giuliani at the time of the September 11, 2001 attacks, pleaded guilty to the federal charges in November.

"I know I must be punished. Please allow me to return to my wife and two little girls as soon as possible to start a new path," Kerik said during sentencing, according to local media.

A former police detective, and once Giuliani's driver, Kerik headed the New York City jail system before taking charge of the police department in 2000.

His career began to unravel during background checks when President George W. Bush nominated him in 2004 to become Secretary of Homeland Security.

Kerik withdrew, but his legal troubles later embarrassed Giuliani in his unsuccessful bid for the 2008 Republican presidential nomination.

Along with pleading guilty to lying and evading taxes, Kerik admitted receiving apartment renovations from a construction firm suspected of organized crime ties and helping the company win city contracts.

"It is a very sad day when the former commissioner of the greatest police department in the world is sentenced to prison for base criminal conduct," U.S. Attorney Preet Bharara said in a statement.

"Today's sentencing of Bernard Kerik is one of the most powerful recent reminders that no one in this country is above the law."

The four-year sentence imposed by Judge Stephen Robinson in U.S. District Court in White Plains, New York exceeded the sentencing guidelines of less than three years, as laid out in Kerik's plea deal, but fell far short of the maximum possible term of 61 years.

Kerik will remain out on bail, under house arrest and wearing an electronic ankle monitor, until he begins his term on May 17.