Man sentenced for pamphleteering

July 28, 2011 · 6:02 am

A Florida man will be spending some time in jail for activity that is usually allowed outside a courthouse.

Mark Schmidter passes out jury nullification brochures. (Courtesy Florida FIJA)

Mark Schmidter was found guilty of “indirect criminal contempt” Tuesday for passing out pamphlets in Orlando during the Casey Anthony trial, according to the Sentinel.

The pamphlets he was handing out described jury nullification, the power of a jury to return “a verdict of ‘Not Guilty’ despite its belief that the defendant is guilty of the violation charged.”

According to the Sentienel, Chief Judge Belvin Perry signed an order early this year banning the distribution of nullification pamphlets that were “meant to influence jurors.” In May, the same judge issued an order that set up “free speech zones” outside the couthouse in preparation for the outrage involved with the Casey Anthony trial.

The judge accused Schmidter of violating his orders and doled out two sentences: 141 days for the first offense and 151 days for the second. In addition, he was belted with a $250 fine for each charge.

The Orlando paper reports that someone else had tested the pamphleteering order with no consequences so Schmidter decided to do the same. He also said he didn’t believe he violated the “speech zone” order . “I said this must not apply to me because I’m not talking about any [particular] case,” he said.

Schmidter and his lawyer, Adam Sudbury, accuse the judge’s order of being too broad and “patently unreasonable.

“It is prohibited for any person or group to engage in any type of First Amendment activities within the main Orange County courthouse complex grounds, unless the First Amendment activities occur within a designated Exempt Zone…”

Schmidter said it could be construed to mean “nobody could carry on a conversation outside the free speech zone.”

During his trial, Schmidter reportedly read the First Amendment out loud in the court. He later told the judge, “I apologize to the court. In my brain, I was just fighting for my country.”

His attorney has already filed for appeal, according to a Facebook page set up to support Schmidter.

Jury nullification isn’t as widely practiced or desired in our current legal system. However, it was encouraged as part of the sytem of checks and balances in the early history of the nation. Cheif Justice John Jay once said to a jury, “You have a right to take upon yourselves to judge [both the facts and law].”

As to the ban on pamphlets and “free speech zones”, both have been deemed unconstitutional by sensible judges. The Foundation for Individual Rights in Education has fought the same tyranny on college campuses for years, with judges usually shooting down the bans.

In February, Judge Andrew Napolitano blasted Judge Perry for his pamphlet ban: “It’s irrelevant what the pamphlet said. In America, we have the natural and constitutional right to free speech. Where on Earth does this judge presume to get the authority to stop anyone from saying anything outside a public courthouse? Has he ever heard of the First Amendment?”

Speaking of judicial authority, it seems that there is another flaw contained in our justice system that is relevant to this case. Since Schmidter was held in contempt, he faced the same judge that charged him. “I’m not getting a trial by jury, just thought I’d throw that in,” he said.

It would seem, that in a “fair” system, a defendant would face an impartial judge, instead of the same judge that has filed the charge. Seems to me like the judge has a bit of conflict of interest.

To learn more about jury nullification and jury rights, visit the Fully Informed Jury Association.

Court Filing Reveals How 2004 Ohio Presidential Election was Hacked

Bob Fitrakis
freepress.org
July 27, 2011

A new filing in the King Lincoln Bronzeville v. Blackwell case includes a copy of the Ohio Secretary of State election production system configuration that was in use in Ohio’s 2004 presidential election when there was a sudden and unexpected shift in votes for George W. Bush.

The filing also includes the revealing deposition of the late Michael Connell. Connell served as the IT guru for the Bush family and Karl Rove. Connell ran the private IT firm GovTech that created the controversial system that transferred Ohio’s vote count late on election night 2004 to a partisan Republican server site in Chattanooga, Tennessee owned by SmarTech. That is when the vote shift happened, not predicted by the exit polls, that led to Bush’s unexpected victory. Connell died a month and a half after giving this deposition in a suspicious small plane crash.

Additionally, the filing contains the contract signed between then-Ohio Secretary of State J. Kenneth Blackwell and Connell’s company, GovTech Solutions. Also included that contract a graphic architectural map of the Secretary of State’s election night server layout system.

Court Filing Reveals How 2004 Ohio Presidential Election was Hacked ClevExlArchMapOH04 Court Filing Reveals How 2004 Ohio Presidential Election was Hacked SmartechRoutingOH04

Cliff Arnebeck, lead attorney in the King Lincoln case, exchanged emails with IT security expert Stephen Spoonamore. Arnebeck asked Spoonamore whether or not SmarTech had the capability to “input data” and thus alter the results of Ohio’s 2004 election. Spoonamore responded: “Yes. They would have had data input capacities. The system might have been set up to log which source generated the data but probably did not.”

Spoonamore explained that “they [SmarTech] have full access and could change things when and if they want.”

Arnebeck specifically asked “Could this be done using whatever bypass techniques Connell developed for the web hosting function.” Spoonamore replied “Yes.”

Spoonamore concluded from the architectural maps of the Ohio 2004 election reporting system that, “SmarTech was a man in the middle. In my opinion they were not designed as a mirror, they were designed specifically to be a man in the middle.”

A “man in the middle” is a deliberate computer hacking setup, which allows a third party to sit in between computer transmissions and illegally alter the data. A mirror site, by contrast, is designed as a backup site in case the main computer configuration fails.

Spoonamore claims that he confronted then-Secretary of State Blackwell at a secretary of state IT conference in Boston where he was giving a seminar in data security. “Blackwell freaked and refused to speak to me when I confronted him about it long before I met you,” he wrote to Arnebeck.

Read the email correspondence here [pdf]

On December 14, 2007, then-Secretary of State Jennifer Brunner, who replaced Blackwell, released her evaluation and validation of election-related equipment, standards and testing (Everest study) which found that touchscreen voting machines were vulnerable to hacking with relative ease.

Until now, the architectural maps and contracts from the Ohio 2004 election were never made public, which may indicate that the entire system was designed for fraud. In a previous sworn affidavit to the court, Spoonamore declared: “The SmarTech system was set up precisely as a King Pin computer used in criminal acts against banking or credit card processes and had the needed level of access to both county tabulators and Secretary of State computers to allow whoever was running SmarTech computers to decide the output of the county tabulators under its control.”

Spoonamore also swore that “…the architecture further confirms how this election was stolen. The computer system and SmarTech had the correct placement, connectivity, and computer experts necessary to change the election in any manner desired by the controllers of the SmarTech computers.”

Project Censored named the outsourcing of Ohio’s 2004 election votes to SmarTech in Chattanooga, Tennessee to a company owned by Republican partisans as one of the most censored stories in the world.

In the Connell deposition, plaintiffs’ attorneys questioned Connell regarding gwb43, a website that was live on election night operating out of the White House and tied directly into SmarTech’s server stacks in Chattanooga, Tennessee which contained Ohio’s 2004 presidential election results.

The transfer of the vote count to SmarTech in Chattanooga, Tennessee remains a mystery. This would have only happened if there was a complete failure of the Ohio computer election system. Connell swore under oath that, “To the best of my knowledge, it was not a fail-over case scenario – or it was not a failover situation.”

Bob Magnan, a state IT specialist for the secretary of state during the 2004 election, agreed that there was no failover scenario. Magnan said he was unexpectedly sent home at 9 p.m. on election night and private contractors ran the system for Blackwell.

The architectural maps, contracts, and Spoonamore emails, along with the history of Connell’s partisan activities, shed new light on how easy it was to hack the 2004 Ohio presidential election.

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A victory in the war against profiteering

Military contract whistleblower Bunny Greenhouse‘s legal win is welcome, but US taxpayers are out $5tn for Bush’s wars.

//

, guardian.co.uk, Wednesday 27 July 2011 14.37 BST

 

Then US Secretary of Defence Donald Rumsfeld, President George W Bush and Vice President Dick Cheney at the armed forces full honour review in 2006 in Arlington, Virginia. Photograph: Charles Ommanney/Getty Images

“War is a racket,” wrote retired US Marine Major General Smedley D Butler, in 1935. That statement, which is also the title of his short book on war profiteering, rings true today.

One courageous civil servant just won a battle to hold war profiteers accountable. Her name is Bunnatine “Bunny” Greenhouse. She blew the whistle when her employer, the US Army Corps of Engineers, gave a no-bid $7bn contract to the Halliburton subsidiary Kellogg, Brown and Root (KBR) as the US was about to invade Iraq. She was doing her job, trying to ensure a competitive bidding process would save the US government money. For that, she was forced out of her senior position, demoted and harassed.

Just this week, after waging a legal battle for more than half a decade, Bunny Greenhouse won. The US Army Corps of Engineers settled with Greenhouse for $970,000, representing full restitution for lost wages, compensatory damages and attorneys’ fees.

Her “offence” was to challenge the KBR contract. It was weeks before the expected invasion of Iraq, in 2003, and Bush military planners predicted Saddam Hussein would blow up Iraqi oilfields, as happened with the US invasion in 1991. The project, dubbed “Restore Iraqi Oil“, or RIO, was created so that oilfield fires would be extinguished. KBR was owned then by Halliburton, whose CEO until 2000 was none other than then Vice President Dick Cheney. KBR was the only company invited to bid.

Bunny Greenhouse told her superiors that the process was illegal. She was overridden. She said the decision to grant the contract to KBR came from the office of the secretary of defence, run by VP Cheney’s close friend, Donald Rumsfeld. As Bunny Greenhouse told a congressional committee:

“I can unequivocally state that the abuse related to contracts awarded to KBR represents the most blatant and improper contract abuse I have witnessed during the course of my professional career.”

The oilfields were not set ablaze. Nevertheless, KBR was allowed to retool its $7bn no-bid contract, to provide gasoline and other logistical support to the occupation forces. The contract was so-called “cost-plus”, which means KBR was not on the hook to provide services at a set price. Rather, it could charge its cost, plus a fixed percentage as profit. The more KBR charged, the more profit it made.

As the chief procurement officer, Greenhouse’s signature was required on all contracts valued at more than $10m. Soon after testifying about the egregious RIO contract, she was demoted, stripped of her top secret clearance and began receiving the lowest performance ratings. Before blowing the whistle, she had received the highest ratings. Ultimately, she left work, facing an unbearably hostile workplace.

After years of litigation, attorney Michael Kohn, president of the National Whistleblowers Centre, brought the case to a settlement. He said:

“Bunny Greenhouse risked her job and career when she objected to the gross waste of federal taxpayer dollars and illegal contracting practices at the Army Corps of Engineers. She had the courage to stand alone and challenge powerful special interests. She exposed a corrupt contracting environment where casual and clubby contracting practices were the norm. Her courage led to sweeping legal reforms that will forever halt the gross abuse she had the courage to expose.”

The National Whistleblowers Centre’s executive director, Stephen Kohn (brother of Michael Kohn), told me:

“Federal employees have a very, very hard time blowing the whistle … I hope it’s a turning point. The case was hard-fought. It should never have had to been filed. Bunny did the right thing.”

According to Nobel Prize-winning economist Joe Stiglitz, the cost of the wars in Iraq and Afghanistan alone will exceed $5tn. With a cost like this, why isn’t war central to the debate over the national debt?

Two-time congressional medal of honour winner Maj Gen Smedley Butler had it right, 75 years ago, when he said of war:

“It is possibly the oldest, easily the most profitable, surely the most vicious [racket] … It is the only one in which the profits are reckoned in dollars and the losses in lives … It is conducted for the benefit of the very few, at the expense of the very many.”

As President Barack Obama and Congress claim it is Medicare, Medicaid and social security that are breaking the budget, people should demand that they stop paying for war.

• Denis Moynihan contributed research to this column

© 2011 Amy Goodman; distributed by King Features Syndicate

The Record Stands On It’s Own

We The People

July 26, 2011

N-CEL:  DANGER!

SECRET VOTE COUNTING AND OTHER FORMS OF OPPRESSION TO CONTINUE IN AMERICA IF YOU FAIL TO GET INVOLVED.

In Russian Cyrillic, the notion appears almost poetically. Translated however, it foreshadowed a nightmare of despotism that would forever affect the world order: “I consider it completely unimportant who in the party will vote, or how; but what is extraordinarily important is this – who will count the votes, and how.” – Attributed to Joseph Stalin, circa 1923, as quoted in The Memoirs of Stalin’s Former Secretary (reprinted 1992) by Boris Bazhanov

How is your vote counted ??

In 2007, two German citizens, recognizing the threat to Freedom poised by reliance on the electronic vote counting machines that had been installed across Germany, sued their State government for redress of their grievance. They charged their natural Right to know, without special or expert knowledge, that their votes were being accurately counted was being violated.

In 2009, the German Constitutional Court (same as our Supreme Court) issued a detailed Order thoroughly examining the constitutional issues involved in election vote tabulation that outright banned the further use of all electronic vote counting in Germany, and specifically required hand marked, publicly counted paper ballots for all future elections.

Also in 2007, the WTP Foundation organized the National Clean Election Lawsuit (“NCEL”) – where three citizen plaintiffs from each state sued the chief election official(s) from their state. The case was filed in New York, in federal District Court in Albany, and assigned to Judge Lawrence Kahn.

On June 4, 2008, even though WTP satisfied New York State’s “long-arm” jurisdiction statute by proving every state’s election process was intimately connected to New York City where the (unofficial) vote subtotals from across the nation were being physically tabulated by the Associated Press and the major television networks using secret office locations in the City, which corporations were in addition, each legally headquartered within New York state, Judge Kahn dismissed all non-New York Defendants and non-New York Plaintiffs.

The non-NY Plaintiffs were dismissed without prejudice, meaning they could file the same case in a federal court in their individual states (none did).  However, Judge Kahn ruled NY Plaintiffs (Bob Schulz and John Liggett) did possess legal standing and could continue the lawsuit. Discovery and a date for Trial by a jury, were scheduled. In 2008, discovery got underway.

In October of 2010, the Defendant NY State Board of Elections again asked the Court to dismiss the case, once again asserting that Schulz and Liggett lacked standing to sue. This motion came a full twenty-eight months after the Court had already ruled Schulz and Liggett had standing, and after Schulz and Liggett obtained 44,414 pages of “top secret” (i.e., “highly restricted,” not to be made public) evidence from the State in response to their specific discovery demands for
documents explaining specifically how their votes are recorded and counted by the Dominion and ES&S electronic voting systems.

Plaintiffs Schulz and Liggett had likewise, many months earlier, provided a number of documents and requested evidence to the State Defendants per rules of discovery.  Plaintiff’s evidence contained numerous items and videos documenting industry-wide election machine flaws, vote counting malfunctions and general susceptibility to illegal vote tampering/hacking, as well as substantial condemnation of electronic voting machines from both state election officials (in other states) and technical/academic experts. In short, the State, for many months, knew at least part of what Plaintiffs intended to show the jury, moving the Court a second time, to dismiss the lawsuit.

By January 10 (2011), the District Court had received the legal briefs from both sides and was in a position to decide the State’s motion to dismiss for lack of standing. Click here for a copy of our Brief in Opposition to the State’s motion to dismiss and its Appendix.

On July 7, the Court issued its Decision, granting the motion and dismissing the case.

Based on numerous factual and legal defects in the Court’s Order to Dismiss, On July 21, Schulz and Liggett filed a Motion for Reconsideration.

Unfortunately, we must now add Judge Kahn’s decision to the sorry record of the collective federal government in responding to attempts by WTP to keep elected officials from stepping outside the boundaries drawn around their power by the letter and the spirit of the U.S. Constitution.

All Lawsuits against the Government ARE First Amendment Petitions for Redress of Grievances!

The record clearly demonstrates in 1995, we filed a professionally drawn, constitutional challenge to the bailout of the Mexican Peso by the Executive Branch (President Clinton and Treasury Secretary Robert Rubin) without Congressional authorization, a violation of Article I. The Peso bailout, (actually designed to insure the Wall Street bankers holding Mexican bonds), proceeded by Treasury’s direct purchase of Peso’s by its secretive (i.e., non-audited) “ESF” fund and by issuing loan guarantees costing U.S. taxpayers the bulk of $50 billion. (Note that before becoming Treasury Secretary, Rubin previously managed a $5 billion fund of Mexican investments at Goldman Sacs.)  The case was dismissed by the federal courts because the constitutional harm being suffered by the dozen citizen-Plaintiffs was no different from the harm suffered by everyone else in the country. The Supreme Court decided not to hear the case.

The record also shows in 1999, we filed a professionally drawn, constitutional challenge to the U.S. military bombing of Kosovo, Yugoslavia, a unilateral, unlawful decision made by the Executive Branch (President. Clinton, and the Secretary of defense and the Chairman of the Joint Chiefs) without Congressional authorization, a violation of Article I. The case was also dismissed by the federal courts because the constitutional harm being suffered by the Plaintiffs was no different from the harm suffered by everyone else in the Country. The Supreme Court decided not to hear the case.

The record also shows between 1999 and 2003, we repeatedly served professionally drawn, First Amendment Petitions for Redress on each every member of Congress and the President over the invasion of Iraq without congressional authorization, the violation of the Money clauses of Article I by the Federal Reserve System, the violation of the privacy clauses of the 4th Amendment by the U.S. Patriot Act, the violation of the Second Amendment by the federal gun control laws, the violation of the “faithfully execute the laws” clause of Article 2 by the  President’s refusal to execute the laws against illegal immigrants, the violation of the Declaration of Independence’s “sovereign nation” principle by those federal officials who are holding ongoing talks aimed at creating a North American Union, and the violation of the Tax Clauses of Article I by the imposition and enforcement of a direct, un-apportioned tax on individual labor.

Finally, because no court had ever declared the meaning of the Redress/Accountability Clause of the First Amendment, in 2004 WTP Petitioned the federal court to declare the Rights of the People and the obligations of the Government under that clause – the last ten words of the  First Amendment. In the end, the Court (erroneously) ruled the Government does not have to listen or respond to First Amendment Petitions for Redress, rendering the Petition clause null and void. We waited seven months for that decision, following oral arguments before the federal Court of Appeals. Although the legal and constitutional meaning of the last ten words of the First Amendment had never been addressed by the Supreme Court, (and remains so) the nation’s High Court decided not to hear the case.

In December of 2006, while we were waiting for the Court to declare the meaning of the Right to Petition in our case, the Congress inserted a brief provision in the Tax Relief and Health Care Act of 2006, authorizing the Executive Branch to publish a list of “specified frivolous positions” and to fine anyone $5,000 who mentions one of them in any IRS related communication. In March of 2007, while we were waiting for the Court to declare the meaning of the Right to Petition in our case, the Executive branch published the list of its (so-called) frivolous positions, which, amazingly, included the First Amendment Right to Petition.

The Court then issued its (erroneous) decision in our case, declaring the Government is not obligated to respond to First Amendment Petitions for Redress and the People do not have the Right to impose economic sanctions against the government if the government refuses to respond to Petitions to Remedy violations of the Constitution. (This despite the very words of the Founders) Let’s not forget the Supreme Court’s decision in the Kelo case of a few years ago to allow a municipality to seize the land of a private citizen and then give it to another private citizen if the municipality can derive more tax revenue from the other person, all in violation of the Property clauses.

Then there is the recent 2011 decision by SCOTUS that government can enter your home without a warrant if they simply suspect you may be destroying evidence.

Let’s not also forget the decision this May by the Supreme Court of Indiana that held a citizen has no right of self-defense against an invasion of his home by law enforcement agents even if the invasion is patently unlawful (no warrant, etc.).

Have You Had Enough Yet? WANT RELIEF?

JOIN THE CONSTITUTION LOBBY!

Think about what most of the people have been doing for decades, over many administrations, suffering one oppressive act after the other, by both political parties. Law abiding, peaceful citizens all, they rally and march, bellyache, bitch and complain, burn up the Internet with their emails, blogs and videos, in chorus yelling, “They can’t do that!” But they DO.

Their bellyaching changes nothing. Their votes change nothing.

Of course, things eventually quiet down, until the next oppressive act, when the cycle of grandstanding and posturing starts all over again. After awhile, the bellyachers lose sight of the Constitutional forest for the trees, forgetting about the cumulative, earlier losses of freedom, failing to “connect the dots” and failing to see the immediate and present danger – the loss of freedom, one slice at a time. The sad truth is, individuals and small groups have changed nothing, whether by Petitioning for Redress under the First Amendment, or simply bellyaching.

Beyond this, the political process continues its dance of illusion, its two parties promising, “just one more election” will fix what ails the nation.

The People, largely ignorant of their little-known, long forgotten Rights protected by the Constitution, continue to rely on the electoral process to secure accountability in government, as if their Rights were, or could ever be, guaranteed by a political majority of those in the Congress or their State Legislatures.

If you live in Connecticut or New York and have not joined the six week old Constitution Lobby in your State, WHY NOT? You can join the Connecticut Constitution Lobby here. You can join the New York Constitution Lobby here. Join the
weekly Constitution Lobby conference call. If you live in another state and have not stepped up to create a Constitution Lobby for your state, WHY NOT?

We the People are at fault for the mess we are in. We allowed it to happen. Let’s get it through our heads:

The Constitution in not a menu.

The Constitution cannot defend itself.

It’s obvious, the Government WILL NOT defend the Constitution.

It’s obvious, the Constitution will not be defended unless the Citizens defend it.

It’s obvious, the People are the only sure reliance for the preservation of our Liberty.

It’s obvious, individuals and small groups cannot prevail against government oppression.

It’s obvious that despite their best efforts, those attempting to rely on the political process to secure their Individual Rights and Liberty cannot possibly prevail against both a corrupt government and corrupt political majority of the populace.

It’s obvious, We the People will achieve the reform we are entitled to only if we are pro-active, non-violent and have an organized mass-movement united in spirit and purpose.

It’s obvious that We the People need a new institution in every state dedicated to institutionalizing Citizen Vigilance, confronting government wrongdoers, and securing meaningful REDRESS FOR OUR GREIVANCES through the coordinated, en masse exercise of all peaceful, lawful means of organized resistance expressly protected by our Constitution and Individual natural Rights as true Sovereigns granted us by our Creator.

t’s obvious, only a CONSTITUTION LOBBY of, by and for the People in each state, with a dues paying membership of 5% of the state’s population will prevail.

So, People, let’s get on with it.

It’s either this or eternal tyranny.

It’s time to choose and live with the consequences.

Bob Schulz

Please know that your donations are urgently needed.  We are spending money hand over fist to facilitate the start-up of the Constitution Lobby here in New York and elsewhere.

Your giving is going for GOOD.   Please donate to WTP today.

Louisiana Monks Win Casket Case

WEB RELEASE: July 21, 2011
CONTACT:

Shira Rawlinson
(703) 682-9320


IJ client Abbot Brown.

New Orleans, La.— A federal court today ruled (read the court’s decision) that Louisiana’s government-imposed monopoly on casket sales in the state is unconstitutional, closing the lid on the economic protection scheme and resurrecting an opportunity for local monks to provide for themselves by creating and selling their handmade caskets. The monks of Saint Joseph Abbey of Saint Benedict, La., and the Institute for Justice, which represents the order in court, had filed suit to fight Louisiana’s government-imposed casket cartel.

Under Louisiana law, it was a crime for anyone but a government-licensed funeral director to sell “funeral merchandise,” which includes caskets.  To sell caskets legally, the monks would have had to abandon their calling for one full year to apprentice at a licensed funeral home and convert their monastery into a “funeral establishment” by, among other things, installing equipment for embalming.

The Honorable Stanwood Duval of U.S. District Court for the Eastern District of Louisiana ruled, “Simply put, there is nothing in the licensing procedures that bestows any benefit to the public in the context of the retail sale of caskets.  The license has no bearing on the manufacturing and sale of coffins.  It appears that the sole reason for these laws is the economic protection of the funeral industry which reason the Court has previously found not to be a valid government interest standing alone to provide a constitutionally valid reason for these provisions.”

The ruling continued, “With the advent of the internet, consumers can now buy caskets from retailers across the country including Wal-Mart and online retailers such as Amazon.com.  This fact is salient in that Louisianians can indeed purchase from these out of state retailers who are not subject to the Act.  Indeed, with the exception of an April 13, 2009 Cease and Desist Order issued to National Memorial Planning, the [Embalmers and Funeral Directors] Board has not issued any other Cease and Desist orders to out-of state casket retailers in the last ten years.”

“This is a slam-dunk victory for the Abbey and for all entrepreneurs who simply wish to pursue their chosen occupation free of unreasonable government interference,” said Scott Bullock, a senior attorney with the Institute for Justice, which represents the monks.  “As the judge recognized, the real reason for this law was economic protectionism for the funeral industry cartel, and that is not a legitimate government interest,” he added.

“We are absolutely thrilled that the court protected our economic liberty rights to provide caskets to willing consumers,” said Abbot Justin Brown, who heads up the Saint Joseph Abbey.  “This is a great day for the Abbey, the U.S. Constitution, and all Louisianans. “

IJ Senior Attorney Jeff Rowes added, “This is a constitutional victory for all of the Davids out there facing down the government Goliath.  The monks of Saint Joseph Abbey are now an integral part of recent cases by federal courts across the country that protect the constitutional right to earn an honest living.  If the State of Louisiana decides to appeal, we will vindicate economic liberty again, and we will keep going all the way to the U.S. Supreme Court.”

IJ President and General Counsel Chip Mellor said, “The Constitution does not allow the government to keep you out of business just to make a cartel of industry insiders richer at the expense of consumers and other entrepreneurs.  This is an opinion that will not only help our clients, but will also help other entrepreneurs nationwide who find their right to economic liberty violated by state and local regulators who often pass laws designed merely to protect existing businesses from competition.  This is a great day for freedom.”

In its ruling, the court wrote, “The Court finds no rational relationship between the Act and ‘public health and safety.’  No evidence was presented to demonstrate that requiring the purchase of caskets from licensed funeral directors aids the public welfare.”

The decision continued, “The provisions of the Act as they relate to the retail sale of caskets by persons other than funeral directors do not protect consumers; the prohibition against Plaintiffs’ selling caskets does not protect the public health and welfare.  The provisions simply protect a well-organized industry that seeks to maintain a strict hold on this business. . . .   Likewise these laws violate the Equal Protection Clause, since the Act in essence treats two distinct and different occupations as the same.”

Finally, the ruling stated, “In sum, the arguments made by defendants [those defending the casket cartel] are hollow . . . .  There is no relation between the obtaining of a funeral license and the ability to manufacture and sell a casket.  The only protection afforded by the Act is the economic protection of the funeral directors which this Court has held not to be in and of itself a rational basis for the Act under the Constitution of the United States for the reasons stated in its previous order.”

Grieving Mother Faces 36 Months In Jail For Jaywalking After Son Is Killed By Hit-And-Run Driver

Huffington Post Posted: 7/21/11 02:01 PM ET by Radley Balko

On April 10, 2010, Raquel Nelson lost her 4-year-old son. Nelson was crossing a busy Marietta, Georgia, street with her son and his two siblings when they were struck by a hit-and-run driver. Police were able to track down the driver, Jerry Guy, who later admitted he had been drinking and had taken painkillers the night of the accident. He was also mostly blind in one eye. Guy had already been convicted of two prior hit-and-runs. He pleaded guilty, served six months of his five-year sentence, and was released last October.

If it ended there, this story would merely be tragic. But it gets worse. Last week Nelson herself was convicted on three charges related to her son’s death: reckless conduct, improperly crossing a roadway and second-degree homicide by vehicle. Each is a misdemeanor, punishable by up to 12 months in prison. Nelson could spend up to six times as many months in jail as the man who struck her son and then fled the scene. Nelson’s crime: jaywalking.

Nelson had taken her children with her to shop for groceries and supplies for her upcoming birthday party. The working mother and college student regularly took public transportation, but she and her kids missed their intended bus that night, putting them an hour behind schedule. The bus they caught pulled up to their stop after nightfall, and Nelson stepped off, clutching her kids’ hands through the shopping bags wrapped around her wrists. Nelson’s apartment complex sits across the street from the bus stop, but the nearest crosswalk is three-tenths of a mile away. So Nelson did what everyone who uses that bus stop does, and what the other disembarking passengers all did that night: She crossed one side of the divided highway to the median, where she waited for a break in the traffic.

Several people then crossed the street before Nelson thought it was safe. She waited with her kids. But when others started to move towards the road, Nelson’s son must taken it as a cue it was time to go. She felt his grip on her hand loosen and he darted out into the road. She followed. Guy’s car struck Nelson, her son and her daughter, and the boy died.

Over the next month, as Guy was processed by Georgia’s criminal justice system, Nelson buried and grieved for her son. But on May 14, the Atlanta Journal-Constitution ran a long story under the headline, “Jaywalkers take deadly risks.” The article mentioned Nelson and her son, pointing out that she hadn’t been charged with any crime. Three days later, the Georgia Solicitor General’s office charged Nelson with the three misdemeanors.

Nelson was convicted last week, and she’ll be sentenced on July 26.

Nelson, a black woman, was convicted by an all-white jury. She relies on public transportation; she is a pedestrian in a car-oriented Atlanta suburb. During jury questioning, none of the jurors who would eventually convict Nelson raised their hands when asked if they relied on public transportation. Just one juror admitted to ever having ridden a public bus, though in response to a subsequent question, a few said they’d taken a bus to Braves games.

Nelson was not judged by a jury of her peers; she was convicted by a jury that had no understanding of the circumstances that compelled her to cross the street where she did.

According to the Daily Mail, other tenants in Nelson’s apartment complex had complained to the city about their difficulties getting home from the bus stop. The Transportation in America blog shows a photo of the stretch of highway where Nelson crossed as evidence city planners are guilty of “poor planning and dangerous designs.”

No one forced Raquel Nelson to jaywalk the night of her son’s death. The suggestion here isn’t that the city owes Nelson anything for the consequences of her actions. But there is something to be said for designing cities with an eye toward how people actually behave, not how urban planners wish they would. Putting a bus stop in the middle of a busy highway, three-tenths of a mile away from the nearest crosswalk — while zoning for apartments and businesses on the other side of the same street — is poor planning.

But it’s really the decision to prosecute Nelson that’s outrageous. That the state can prosecute someone doesn’t mean that it should. And it seems that a little empathy would be in order here.

Prosecutors have a great deal of discretion over when to bring charges, and over what charges they bring. If those in the office of Solicitor General Barry Morgan are charging Nelson to punish her for her jaywalking, they’re misguided — it’s hard to conceive of a more potent punishment than the loss of a child. If their aim was to make an example of a devastated mother to prevent others from jaywalking, they’re delusional.

But this isn’t even the first time they’ve done it. According to the Journal-Constitution, in 2010, Morgan’s office charged another woman whose child was struck and killed while the two were jaywalking.

A recent Pro Publica/Frontline investigation found prosecutors seem especially prone to find criminality — then over-charge once they do — in instances of child death, even when the evidence suggests the death was an accident.

Earlier this month, I wrote a column criticizing the so-called Caylee’s Law, the bill sweeping state legislatures across the country in response to the Casey Anthony verdict. I mentioned a number of scenarios in which innocent parents or caretakers might be prosecuted under the law. The response from the law’s supporters was that a prosecutor would never charge a grieving parent under those circumstances. This case shows that such prosecutions can and do certainly happen.

There are nearly always strong incentives for prosecutors to over-charge defendants. Prosecutors receive praise, and are reelected and promoted based on their ability to win convictions. They’re rarely punished or held accountable for over-charging, or committing misconduct en route to a conviction. They’re also rarely praised or credited when they decline to bring charges in the interest of justice.

There are a couple of solutions here. Lawmakers should anticipate ways laws might be abused or misapplied — even in scenarios that seem unlikely — and craft laws in ways that minimize the chance that they’ll be abused. The justice system should not rely on the goodwill of prosecutors.

Another solution: We need to start holding prosecutors accountable for bringing unjust charges like those brought against Nelson — even if they may technically be legally permissible.

In nearly all jurisdictions, “prosecutor” is a political position. That means voters can realign the incentives. If Cobb County residents want to make it clear that the prosecution of Raquel Nelson is an abuse of power and a waste of resources, they could let Solicitor General Barry Morgan know, both now and next Election Day.

Correction: An earlier version of this article misstated the prosecuting office as that of Cobb County District Attorney Patrick Head. Misdemeanors in Georgia fall under the jurisdiction of the solicitor general’s office, not the district attorney’s

 

Prosecutorial Discretion

Scales of Injustice

Wednesday, July 20th, 2011

More victims of the unintended consequences of laws that are named after dead people:

Call it bullying or call it horseplay. Either way, a state appellate court panel says roughhousing with a sexual connotation by a pair of 14-year-old Somerset County boys was a crime that requires them to register as sex offenders for the rest of their lives.

In a decision handed down Monday, the three-judge panel acknowledged the severity of its decision, but said it was bound to uphold the law. “We are keenly aware that our decision may have profound lifelong ramifications for these two boys as well as others similarly situated,” Judge Jose Fuentes wrote.

One of the boys, whose case went to trial, said he had sat on the faces of a pair of 12-year-old schoolmates with his bare buttocks in November 2008 “cause I thought it was funny and I was trying to get my friends to laugh,” he told a family court judge.

But an act is considered criminal sexual contact if it is done for sexual gratification or to degrade or humiliate the victim, and punishable by lifetime registration — even for juveniles — under Megan’s Law, which requires a person convicted of a sex crime against a child to notify police of changes of address or employment.

The trial judge concluded the teenager intended to humiliate or degrade his victims and found him guilty of criminal sexual contact. The second teenager who was implicated pleaded guilty to criminal sexual contact and received the same penalty . . .The prosecutor who charged these kids ought to lose his job.