South Carolina Approving Death Penalty for Pedophiles.

According to the AP, the South Carolina Senate has approved a bill that makes repeat child rapists eligible for the death penalty. According to the report, Republican Senator Larry Martin said, "What we've got to do today is vote our conviction." The proposal allows prosecutors to seek the death penalty for sex offenders who are twice convicted of sexually assaulting a child younger than 11.

Links:
ABC News Report March 29, 2006.
Wilmington Star News Online March 28, 2006.
Text of Bill

Husband on Trial for Domestic Assault and Kidnapping of Wife.

A Council Bluffs, Iowa, man is currently on trial in a case that has gained international attention. The man, Travis Frey, is accused of tying up his wife and sexually assaulting her. He is facing first degree kidnapping charges and faces life in prison if convicted.

The case gained notoriety primarily because of evidence about a bizarre sex contract Frey allegedly gave to his wife. The full contents of the contract are available at The Smoking Gun. The document is titled a "Contract of Wifely Expectations" and it establishes "guidelines" for Frey's wife in terms of hygiene, clothing, and sexual activities. A few of the highlights:

Hygiene & Self-Care:

You will shave every third day, which includes underarms, chest, legs, and pubic area (navel to anus), all areas are to be completely shaven. Above your vaginal slit you may have a patch of pubic hair in any shape, that must be centered above your vaginal slit, it will measure no greater than 2.0"X1.0", and will maintain a hair length of less 1/3".

Sleepwear & Sleeping:

When we are at home, and alone as a family, you will be naked within 20 minutes of the kids being in bed, and then sleep naked, unless instructed otherwise. If I am not home when the kids go to bed you are still to be naked before I return home. The only exception will be during your menstrual cycle.
When we are not at home, or not alone as a family, you will try to ensure that we sleep together. If we do sleep together you will sleep naked. I will make exceptions for sleepwear, but only if you do not ask for them. Exception will be given based on how well you follow this contract in its entirety. . . .
When exceptions are given the following is acceptable and is your choice: T-Shirts, pajama tops, or gowns as long as the over-all length is not past your knees. Panties (any type) can be worn also. Absolutely no bottoms, shorts, pajama pants, or full gowns can be worn.
. . .

My Time:

When we are at home and alone as a family, from when you are to be naked until 12:00 am, or for three hours, whichever is later, will be My-Time. This time will be, time you will devout (sic) solely to me, whereas you will be in my service to do anything and everything I want, which may or may not be sexual in manner.
. . .
During My-Time you --
WILL NOT:
1) Argue about anything with me or to me.
2) Complain about anything to me, or about me.
3) Cry, sob, whine, or pout.
4) Sigh, moan, sulk, or otherwise show displeasure or unhappiness.
5) Raise your voice at or to me.
6) Be condescending to, or about me.
7) Ask for anything from me or for me.
8) Be distracted from me, by other things.
During My-Time you --
WILL:
1) Be subservient, submissive, and totally obedient.
2) To do what you are asked, when you are asked, exactly how you are asked.
3) Be cheerful and adoring towards me.
4) Be close at all times, unless otherwise told to.
5) Perform any and all sexual acts, excluding anal penetration and/or ingestion of [semen], when told to.

. . .
Fellatio, Intercourse, & Other Sex Acts:

Fellatio must last at least 5 min. and may include climax. Intercourse includes anal and vaginal intercourse. Sex Acts can be oral, anal, or vaginal, and include but are not limited too (sic): stripping, hand-jobs, fingering, masturbation, dildoing, vibrators, and object insertions. All applications of lube to myself, you, or any object, will be done by you.

The contract further provides that the wife can earn "good behavior days" for being compliant and performing "with complete and total enthusiasm." If the wife misbehaves or is noncompliant, she loses "good behavior days." Noncompliance specifically includes starting something and then not finishing "even if [the wife states] that [she is] in pain or something hurts." If the wife did not have sufficient "good behavior days" accumulated to "pay" for her noncompliance, the contract specifies that she would "be tied to the bed and [Frey] will do whatever [he] wish[es] too (sic) [her]." The wife also is required to apologize for the noncompliance and "explain how [she is] ready to be [his] sex slave again." The contract allows the wife to "redeem" good behavior days to "get out of" compliance on some days, as long as she provides sufficient notice of her intent to "cash in" a good behavior day.

The trial began this week and the victim took the stand on Wednesday to describe "in painful detail the events that led to her husband's arrest." She told of two "relatively minor incidents" that had led her to call a domestic violence hot line, then testified about the contract, and then testified about how she had been "noncompliant" on one night and Frey had restrained her arms with a rope and performed "a sex act" on her. Local television coverage has indicated that the "sex act" in question was actually anal penetration.

The case is continuing, and Frey was expected to take the stand in his own defense. If convicted, Frey faces life in prison. Oh, and he also faces charges in an "unrelated" case in which he faces 40 counts of "sexual exploitation of a minor" based on pornographic images found on his computer in which he superimposed the faces of his wife and her younger sister onto the bodies of children.

**UPDATE -- March 31, 2006:
On Thursday, March 30, 2006, Frey took the stand in his own defense. His testimony depicted that he was "fixated on a certain sex act that he wanted his wife to perform," but he testified that he did not force it upon her. Frey testified that he asked his wife if he could tie her up, but that she said no. He testified that he "asked for a certain sex act and they tried it" but stopped because she was uncomfortable. He acknowledged drafting the "contract" but argued that it was just part of a sexual fantasy, was not enforced, and was "no big deal."

Closing arguments were made yesterday, as well. The prosecutor argued that Frey forced "the sex act" on his wife after she refused. The defense argued that no "attack" happened and that the event was merely "a playful sexual relationship that was not criminal."

**UPDATE: March 31, 2006:
Today the jury found Frey GUILTY of sexually assaulting his wife. The jury concluded that there was not sufficient evidence that Frey had tied his wife up, so they did not convict on the kidnapping charge; they concluded, however, that he had forced a sex act on her. The jury deliberated for approximately 4 hours before returning the verdict.

Pottawatttamie County Attorney Matt Wilber said, "I don't care if you're married or not. You can't sexually assault your wife."

Frey faces up to 10 years in prison for this conviction, and substantially more on the other charges for which he is still awaiting trial.

Links:
Omaha World Herald Second March 31, 2006 Article.
Omaha World Herald March 31, 2006, Article.
Omaha World Herald March 30, 2006, Article.
Omaha World Herald March 29, 2006, Article.
The Smoking Gun (Contract .pdf).

Frankie Can't Relax (February 21, 2006) (commenting on contract and providing Francesca's own humorous spin on the story)

Jill Carroll Released, Safe and Unharmed.

How about some GOOD news for a change?

The Christian Science Monitor posted the following simple and powerful message on its website at 7:03 this morning:

After being held hostage for nearly three months, Jill Carroll is free.

The Washington Post reports this morning that "American journalist Jill Carroll, abducted in early January by gunmen in Baghdad, was released to a Sunni Arab political party in the capital Thursday morning after 82 days in captivity." Carroll's statement:

"I was treated very well. That's important for people to know," she said in an interview with an Arabic-speaking questioner at the headquarters of the Iraqi Islamic Party. "They never hit me, they never even threatened to hit me. I'm just happy to be free, and I want to be with my family."

Carroll said that she does not know where she was held or why her kidnappers decided to release her. During her captivity, Carroll spent her days sitting in a small room with one window, was fed well, allowed to shower whenever she wanted, but given very little information from the outside world.

Carroll's captors had previously aired videotapes in which they threatened to kill Carroll unless all female prisoners in American detention facilities in Iraq was released. Carroll was last seen in a February 9 video broadcast on Kuwaiti television, in which Carroll asked her supporters to do whatever was necessary to gain her release.

CNN.com has more on the developing story.

Coverage of Hamdan v. Rumsfeld Arguments.

Yesterday SCOTUS heard arguments in the case of Hamdan v. Rumsfeld, concerning the validity of war crimes tribunals set up by President Bush. I won't provide much personal commentary, but there is plenty of it elsewhere in the blogosphere:

SCOTUS Blog has a nice recap of how the arguments went. It is worth noting, when reviewing SCOTUS Blog's impressions, that the firm is co-counsel for Hamdan. According to SCOTUS Blog, the Court "probed deeply into the validity of the war crimes tribunals set up by President Bush, and came away looking decidedly skeptical. From all appearances during the 90-minute argument, the Court may have some difficulty fashioning an opinion, but perhaps not a result: the existing 'military commission' scheme may well fail." Additionally, SCOTUS Blog noted that "[w]ith only eight Justices participating (Chief Justice John G. Roberts, Jr., is recused) it appeared that Justice Anthony M. Kennedy might well emerge as holding the decisive vote. In a variety of ways, Kennedy seemed troubled about the legitimacy of the tribunals as presently arranged." (Transcript of Argument.)

Georgetown Law has posted a link to the audio from the arguments, for your listening pleasure.

The Pocket Part has a general overview of the case, as well as positions from both sides of the issues.

ACS Blog posted yesterday about Scalia sitting in on the arguments and hearing the case. As I posted about last weekend, there was controversy about whether Scalia should continue to hear this case in light of comments he made recently in Switzerland. Observers of the arguments have reported that Scalia appeared to be the most amenable to the government's position (not surprisingly).

The Legal Reader also posted a brief summary yesterday, with links to the The Washington Post coverage.

Jurist has a link-rich summary of the case, it's history, and the arguments.

Finally, the folks over at TalkLeft also had a summary of the goings-on.

Pretty much all of the above posts contain links to even more analysis and commentary on the case.

**UPDATE (3/30/06):**
Miami Herald Article (March 29, 2006)
SCOTUS Blog Link to Transcripts from Argument

New York City Symposium on Judicial Selection and Independence to be Held April 7, 2006.

Here's an announcement about an extremely important and timely symposium of interest to the legal community. I have a friend who is involved in this, so talk it up, spread the word, and if possible, check it out:

On Friday April 7, 2006, there will be a SYMPOSIUM held at Fordham University School of Law in New York City on the subject of judicial selection and independence. The Symposium is free and open to the public.

The Symposium, titled "Rethinking Judicial Selection: A Critical Appraisal of Appointive Selection for State Court Judges," will focus on discussion of various models of appointive selection of state court judges. Norman Greene, a partner at Schoeman, Updike & Kaufman in Manhattan, was recently quoted in the New York Law Journal shedding some light on the content of the Symposium:

An appointive system by itself tells you nothing about whether it is a good system, absolutely nothing," Mr. Greene said. "But almost all of the good government groups . . . support an 'appointive' system. If we start with the assumption that an appointive system is the way to go, how do we develop a good appointive system? To say that you need a diverse, independent, credible body making these decisions doesn't make it so. What are the mechanics?"

Papers will be published in the distinguished Fordham Urban Law Journal in the Summer of 2006. The Symposium will feature panels comprised of distinguished jurists, law professors, and political science professors from all over the country. Registration is free for the event, but encouraged in advance. RSVPs are encouraged by April 3, 2006.

The Symposium is being sponsored by The American Judicature Society, The Constitution Project, New York State League of Women Voters, Stein Center for Law and Ethics, Fordham Law School, and The Fund for Modern Courts.


Important Links:
Fordham Law School Information Page.
Registration Page.
ABA Net Publicity Page.
Justice at Stake Campaign Publicity Page.
Demos Democracy Dispatch Publicity Page.
NY State Bar Association Publicity Page.
New York Law Journal Article (subscription required).

**UPDATES:**
Thank you to the following fine blogs for helping me to get the word out on this Symposium:
Either End of the Curve (Reader_IAm)
Infamy or Praise (Colin Samuels)
The World According to Pooh (Seth)
The Legal Reader (John)

Justice Scalia Opposes Civil Trials for Military Detainees.

Justice Scalia has, in recent years, become involved in a number of cases where his potential recusal garnered headlines. For example:

Elk Grove Unified School District v. Newdow, the "pledge of allegiance case" out of California. Several months before the case was scheduled to be argued before the U.S. Supreme Court, Scalia was a speaker at a "Religious Freedom Day" ceremony. During his speech, Sclaia criticized how courts and society have handled church-state issues in recent years. Mayor Bill Beck of Fredericksburg, Va, who introduced Scalia at the ceremony, recalled Scalia's remarks as making it "clear that he thought anyone who did not want school children to say the Pledge of Allegiance with the words 'under Go' in it deserved a spanking." The party in that case seeking to have "under God" removed from the Pledge, Michael Newdow, affirmatively requested Scalia's recusal. The request brought a great deal of public commentary and debate about the relatively non-specific ""rules" that dictate when Justices of SCOTUS decide to recuse themselves and when they decide not to. Ultimately, Scalia decided to recuse himself from the case.

Somewhat similarly, the question of whether Scalia should recuse himself from a case arose concerning a case in which Vice President Dick Cheney was the named party. In that case, while the case was pending before SCOTUS, Cheney and Scalia went on a duck hunting trip in Louisiana together; a trip "sponsored" by an energy company. The case involved whether energy companies played too significant a role in developing Bush's energy policy and involved requests for Cheney to disclose the names of individuals who had comprised an energy task force. Scalia commented to the L.A. Times that he did "'not think [his] impartiality could reasonably be questioned' and that the only thing really wrong with the trip was that the hunting was 'lousy.'" Scalia ultimately refused to recuse himself.

And now it's happening again. According to SCOTUS Blog, this time the issue concerns comments Scalia made a couple of weeks ago in Switzerland concerning whether alien military detainees are entitled to civil trials. SCOTUS Blog reports:

[I]n response to a question about affording constitutional rights to Guantanamo detainees, he states unequivocally that "foreigners, in foreign countries, have no rights under the American Constitution" and that "nobody has ever thought otherwise." But see Rasul v. Bush, 542 U.S. 466, 483 n.15 (2004).

Of potential relevance to the current docket, in answer to one question from the audience (just after the 56:00 mark), Justice Scalia expresses incredulity at the notion that detainees captured "on the battlefield" should receive a trial in civil courts. It is, he says, a "crazy idea." To a follow-up question about the Geneva Conventions and other human rights treaties, he responds with evident disdain: "What do they mean? They mean almost anything." The questioner then refers again to a hypothetical Guantanamo detainee, at which point Justice Scalia interjects: "If he was captured by my army on a battlefield, that is where he belongs. I had a son on that battlefield and they were shooting at my son. And I am not about to give this man who was captured in a war a full jury trial. I mean it's crazy."

SCOTUS is scheduled to hear arguments on Tuesday in Hamdan v. Rumsfeld, a case in which, inter alia, a military detainee at Guantanamo Bay is asserting a right to be tried in a civilian court or by court-martial, rather than in the Pentagon's military tribunal. Other issues include the extent to which the Geneva Conventions protect detainees.

Stay tuned for updates on whether Justice Scalia concedes that his statements in Switzerland at least bring his partiality into question and merit recusal.

**UPDATES:**
Kierkegaard Lives Post-Argument Post (March 29, 2006)
How Appealing Links to Coverage (March 28, 2006)
How Appealing Links to Coverage (March 27, 2006)

The Friday Fantastic Four #8.

My apologies for not having any "Fantastic Four" posts for the past two weeks. Sometimes real life just gets hectic, you know? So, without further adieu, here is the return of the Friday Fantastic Four, this the Eighth installment:

1. Featured Law-Oriented Blog.

This week's featured Law-Oriented Blog is I respectfully dissent, providing "random thoughts, ramblings and rants about things legal, illegal, tortious, outrageous and otherwise." The author, Bryan Gates, is a North Carolina lawyer focused primarily in family and domestic law, state and federal criminal defense, civil trial, traffic and DWI, and bankruptcy law. In addition to the blog, Gates also maintains another site, "Ask The Law Guy", where he answers some of the more interesting legal questions received via email.

A persual of some of Gates' recent blog entries will lead you to some interesting thoughts and discussions, including:

A discussion of the "red herring" in SCOTUS' recent decision in Georgia v. Randolph, where Justice Souter responded to Chief Justice Roberts' dissent expressing concern about the danger domestic violence victims face when abusive spouses object to searches of their homes. Gates suggests that the danger is actually quite small for a number of reasons, including the myriad of apparent loopholes to the "new" doctrine espoused in the majority's opinion and the general minimal physical evidence collected in domestic violence cases. Gates points the reader to several prior examples of "the first 'red herring'" of the SCOTUS season from past years, as well.

A discussion of how much time is reasonable to spend (or, more appropriately, to bill) on a given case. Gates discusses differences in practice between state and federal courts, as well as some of the practical difficulties encountered by lawyers in deciding how much time to spend trying to research potential witnesses and evidence.

A lighthearted discussion of Gates' "inner WalMart". Despite all the aversions to WalMart, Gates concludes that "sooner or later you have to admit that being able to buy a set of margarita glasses for $5.77 is pretty irresistible."

2. Featured Law Commentary.



This week's featured Law Commentary comes courtesy of Jurist, where guest columnist Peter Shane of The Ohio State University Moritz College of Law argues that the Bush Administration's proposed "Line-Item Veto Act" has two significant problems, including that it is not really proposing a line-item veto at all.

Shane sums up the Act as a proposal that "would allow the President to recomment to Congress that it take back or 'rescind' any item of budget authority it had previously approved" and that "envisions an expedited process for considering the President's proposals" and "allows the President to withhold the funds he proposes to rescind for up to 180 days while Congress considers his proposal. According to Shane, the President pretty much already has this exact same power, and this power is not really a line-item veto at all.

First, Shane notes that every President has an absolute right to "recommend" to Congress that it enact specific legislation to rescind previously granted budget authority, based on section 3 of Article 2 of the Constitution. Additionally, the U.S. Code includes a provision expressly authorizing the President to rescind budgetary authority when "all or part of [such authority] will not be required to carry out the full objectives or scope of programs for which it is provided" or where the President believes the authority needs to be rescinded for fiscal policy or other reasons. The U.S. Code provision even provides an expedite process. According to Shane, the new Act would make the process "even more expedited" and would allow the President to hold onto the money for a longer period of time before spending it elsewhere, but it otherwise does not really provide new powers. And, perhaps even more importantly, if this power is something the President really feels he needs "even more" of than he currently has, why doesn't he use the existing power more?

Second, the Act does not really create a line-item veto power. As Shane notes, a true line-item veto really allows the executive "to strip out of an appropriations measure an item of spending that could not be justified by the public interest, but exists entirely because of bargaining within the legislature. What the current Act would do is simply allow the President to ask Congress to go back and undo its bargain on particular pieces of arrangements already made.

Shane's discussion of this topic is interesting, and puts everything into pretty simple terms. Go check it out in its entirety.

3. Featured Non-Law-Oriented Blog.

This week's featured Non-Law-Oriented Blog is AHISTORICALITY, "because history is not destiny . . . yet." You can get a good sense of Ahistoricality's author by checking out the "Who Am I?" link. Apparently, the author has characteristics of Remus Lupin, Einstein, sloth, and Chewbacca, among other interesting tidbits.

This blog features commentary on a vast range of topics, including politics, writer's block, religion and, of course, history.

Take some time to dig through the archives. There's a wealth of good reading there.

4. Featured Just-For-Fun Site.

Finally, this week's featured Just-For-Fun Site is Google Sightseeing, a site devoted to collecting fascinating locations on "Google local" (f/k/a Google Maps). You can find locations of historical import and lots of anomolies in the google satellite captures, ranging from "UFO's" to passing aircraft to "black holes." Don't check this site out unless you are prepared to waste a big chunk of time, but it's pretty addictive to see what all is there, and pretty tempting to go look for more on your own using the google local service.


Previous Friday Fantastic Four Posts:
March 3, 2006 (FFF #7)
February 24, 2006 (FFF #6)
February 10, 2006 (FFF #5)
January 27, 2006 (FFF #4)
January 20, 2006 (FFF #3)
January 6, 2006 (FFF #2)
December 30, 2005 (FFF #1)

SCOTUS Upholds Anticipatory Warrants -- US v. Grubbs.

The US Supreme Court has issued its ruling in US v. Grubbs, concerning the use of "anticipatory search warrants." The question presented in the case was whether the 4th Amendment requires suppression of evidence when the anticipatory warrant's triggering condition is satisfied, but the triggering condition is not set forth in the warrant itself.

The defendant in the case, Grubbs, was charged with possession of child pornography after ordering a videotape. Investigating officers applied for an "anticipatory warrant," to become operative after a "triggering event" occurred to indicate probable cause. The affidavit asked for a warrant that could be executed after the pornographic videotape was delivered to the house, received by Grubbs, and taken into the house. The warrant was granted, but the warrant itself did not indicate what the "triggering events" were; affidavits attached to the warrant did indicate the triggering event, however. When police executed the warrant, after Grubbs' wife received the videotape from a postman, the police presented Grubbs with the warrant (which did not list the triggering event), but not the affidavit (which did list the triggering event).

The trial court denied Grubbs' motion to suppress. The Ninth Circuit reversed, finding that the triggering event needed to be shown to the person whose property is being searched.

Today, SCOTUS reversed the Ninth Circuit. In an opinion by Scalia, the Court upheld the use of anticipatory warrants, held that the "triggering event" in the present case provided sufficient probable cause for the issuance of an anticipatory warrant, and held that the warrant itself does not require the "triggering events" to be set forth. The Court held that the "particularity" requirement in the 4th Amendment requires only that the warrant particularly set forth the place to be searched and the persons or things to be seized.

Links:
Jurist post.
SCOTUS opinion

Texas Man Freed After 18 Years; DNA Evidence Exonerates.

The Dallas Morning News reports today that a Texas man has been freed after serving 18 years in prison on a rape conviction after a second DNA test exonerated him.

Gregory Wallis was 29 years old when he was accused of breaking into a woman's home and attacking her in 1988. The attacker spent hours in the home with the woman, and she made a positive identification. Wallis' photograph was placed in a photographic lineup after an anonymous tip indicated that he was involved in the attack. Wallis said that he did not know how the victim came to pick him. He said, "I was sitting at home and they came and arrested me. The next thing I know, I'm standing trial."

Wallis was convicted after a jury trial. The conviction was for burglary with intent to commit sexual assault. Wallis was sentenced to 50 years in prison. Wallis had several prior robbery convictions, but had never been known to assault anyone.

At the time of Wallis' trial, an expert testified that authorities could not extract DNA evidence to test. As a result, the trial was based on the victim's testimony and her identification of Wallis as her attacker. Wallis did not take the stand on his own behalf.

In 2004, Wallis moved for post-conviction DNA analysis. Investigators had to track down new samples from the victim and her former boyfriend, adn had to find the original DNA evidence from the attack. Initial testing in December suggested that Wallis was not guilty, but could not entirely exclude him. As a result, Wallis could have been freed then, but only if he agreed to live as a registered sex offender for the rest of his life. Wallis found that option unacceptable, and he sought more sophisticated DNA testing.

The more sophisticated testing found no match with Wallis' DNA. It further concluded that the woman was assaulted by someone who had "smoked a cigarette recovered from the crime scene."

A Texas District Court Judge granted Wallis a personal recognizance bond and said, "You should not be incarcerated -- not a moment longer." The Judge said, "I don't know how to apologize. I don't know where to start, but I'll start with me and 'I'm sorry.'" The Judge was not involved in Wallis' trial.

Wallis said he's eager to begin his new life. He speculated on his first meal as a free man -- maybe steak -- and said he's going to settle down and get a job. Like others falsely convicted in Texas, he's eligible for up to $250,000 in compensation for the years he spent locked up. Additionally, he learned to repair heating and cooling systems while in prison, and he plans to seek work in that trade.

Hat-tip: Talk Left (March 21, 2006)

Natalee Holloway Case: Is New York the Proper Forum?

Elizabeth Ann Twitty and Dave Edward Holloway, the parents of Natalee Holloway have filed a civil suit against two men they believe are responsible for Natalee's disappearance. The problem? Twitty and Holloway are from Alabama, are suing two men from Aruba, for actions they believe occurred in Aruba. And they have pled Alabama law. But the suit was filed in state court in Manhattan, New York.

The Defendants have filed a forum non conveniens motion. In the motion, the Defendants allege that they are sympathetic to the Plaintiffs' not knowing the present whereabouts of Natalee, recognize the Plaintiffs' hardship and the vast media attention that has been brought upon them and the case. However, the Defendants allege:

. . . the courts of New York will not entertain claims which lack a "substantial nexus" with this state. [citation omitted.] This action not only lacks the requisite substantial nexus to New York, but lacks any nexus to this State. All parties to the action are nonresidents and nondomiciliaries of New York. All causes of action alleged in the complaint arose in Aruba, a foreign jurisdiction. Aruban law must be applied to adjudicate this case. To litigate this case in New York would put a tremendous burden on the parties and the Court given the great distances involved and the location of witnesses and evidence some 2000 miles away.

Hat-tip: Appellate Law & Practice (March 20, 2006)

**UPDATE:
Kierkegaard Lives, August 6, 2006 (NY judge dismisses civil case)

Geoffrey Fieger, Insulting Judges, and Free Speech.

Geoffrey Fieger, the outspoken former attorney for Dr. Jack Kevorkian, is at the center of a constitutional battle involving a lawyer's right to "insult" judges outside the courtroom. The controversy involves comments made by Fieger while appearing on a radio talk show in 1999 after a Michigan appeals court overturned a $15 million verdict Fieger had won in a medical malpractice case.

The Michigan Attorney Grievance Commission has reprimanded Fieger for the comments made on the radio talk show. The grievance commission found that Fieger "used numerous obscenities, called the justices 'three jackass court of appeals judges,' declared war on them and referred to them as 'Nazis.'" Fieger's attorney is arguing that the comments are protected by the First Amendment and that there's no "law" that says an attorney must be dignified.

Michigan, however, has two unique Rules of Professional Conduct, including a "courtesy" rule which requires lawyers to treat judges with respect and courtesy. The grievance commission is now asking the Michigan Supreme Court to draw the line between an attorney's free speech rights and the attorney's obligation to courtesy and professionalism.

The history of the case is outlined in this article.

Hat-tip: Legal Reader (March 20, 2006).

Welcome to Spring. Here's your Blizzard.

Today is supposed to be the first day of Spring. So, since I'm in Nebraska, it is naturally snowing approximately 12"-18" today. That sounds about right. Needless to say, I'm a little busy today and don't really have time to blog about legal news and happenings.

Instead, check out some of the following other bloggers:

Orin Kerr has an interesting post this morning about his observations of two Confrontation Clause arguments before SCOTUS. He's got links to the cases and the predecessors, etc.

Blawg Review #49 is up over at Jim Calloway's Law Practice Tips Blog. Some good stuff from last week in the blawg-o-sphere.

SCOTUS Blog has its own "Blog Round-Up" posted for today. More in depth and thorough than this minimalist effort on my part to be sure. But, hey, I AM sending you over there, right? It all works out in the long-run.

Ann Althouse has a Monday morning post for discussion (in the comments) about the new episodes of Sopranos and Big Love.

Pooh calls out Congressional Democrats by asking: "Are You About Anything?" (with one of my favorite online graphics of all time, I might add).

New GOP Bill on Warrantless Surveillance.

New developments yesterday concerning the NSA Warrantless Surveillance program.

Senator Mike DeWine of Ohio sponsored a bill yesterday that would "legalize" additional warrantless domestic surveillance of US citizens by the government. As Jurist reports, DeWine indicates:

To engage in such surveillance, the President must have probable cause to believe that the target of surveillance is a member of or affiliated with a terrorist organization. And, he must believe that the surveillance is necessary to protect the United States from a terrorist attack.

The new bill would allow warrantless electronic surveillance for 45 days of the phone calls and e-mails of a "suspected terrorist" where one party is in the United States, and after 45 days the government would be required to obtain a warrant under FISA or justify continued warrantless surveillance to the Senate Intelligence Committee.

Obviously there are a lot of questions surrounding this bill. Some critics are arguing that the new bill gives the government too much discretion and is nothing more than an attempt to legalize an illegal practice. According to the ACLU:

"This bill makes a mockery of congressional oversight and must be rejected," said Caroline Fredrickson, Director of the ACLU Washington Legislative Office. "Congress cannot approve an illegal program when so many questions remain unanswered. When the rule of law has been broken by anyone, especially a president, the proper response is a full and independent investigation -- not a whitewash of the unlawful activity."

Links:
DeWine Bill (courtesy of SCOTUS Blog)
Jurist Report
SCOTUS Blog Commentary
ACLU Letter to Senate

Battered Woman Syndrome.

There is a very thoughtful feature piece over at Medill's 'On The Docket' about Battered Woman Syndrome and how courts treat the subject when expert evidence is offered.

The focus in this particular piece is on Dixon v. U.S., a woman who attended two gun shows in Dallas, TX, accompanied by her boyfriend. Dixon's boyfriend was a convicted felon and was unable to legally purchase a firearm at the gun shows, so he had Dixon "do the dirty work for him." Dixon purchased seven guns for him. Dixon was ultimately charged with receiving a firearm while under indictment (for participation in an unrelated check-cashing scheme) and for making a false statement to purchase a firearm. Dixon acknowledging breaking the law, but said she had acted under duress because she had been abused for many years by the boyfriend and feared serious bodily harm or death if she did not follow his instructions to purchase the firearms.

The court refused to allow expert testimony relating to Battered Woman Syndrome and its possible role in Dixon's actions. The court reasoned that the expert testimony would be overly subjective. Dixon did present evidence about the abuse she suffered at the hands of her boyfriend, but the jury was not convinced. Dixon was convicted and sentenced to 34 months in prison. Dixon appealed, challenging the court's refusal of the expert evidence and concerning the court's conclusion that BWS is an affirmative defense that the defendant bears the burden to prove. The 5th Circuit Court of Appeals unanimously rejected Dixon's arguments on appeal. Now SCOTUS has agreed to hear the case, but only on the issue of what standard of proof the defendant should be held to in proving duress.

In the article about BWS, there is a good discussion of how BWS is treated differently in various states and of the juxtaposition of law, advocacy, and science involved in matters such as BWS and post-traumatic-stress disorder. Some really good food for thought in there, and certainly support for, at the least, the notion that there should be some kind of uniform treatment of BWS from state to state.

The Constitutionality of 'Good Driver' Stops.

Professor Orin Kerr has branched out to start up his own blog, OrinKerr.com. No real welcome is probably necessary, since Kerr has long been blogging over at mega-blog Volokh Conspiracy, but I am going ahead and adding this new one to the blog-roll. As one of the most prolific posters at Volokh, Kerr's blog is sure to have consistently thought-provoking posts.

One such post is Kerr's post from earlier in the week asking the question, "Are 'Good Driver' Stops Constitutional?". Kerr raises some interesting questions about a relatively recent law enforcement practice, having "good driver" traffic stops where officers pull over a few good drivers who are obeying traffic laws, commend them, and offer token gifts. I've seen such a program where officers stop people and then give out drinking mugs if the driver is properly wearing his/her seatbelt.

The question Kerr raises is what happens if the officer stops somebody for obeying the law, but then through plain view or otherwise gains reasonable suspicion or probable cause to believe some violation of law is occurring. For example:

Imagine this hypo: A police officer sees a person driving in compliance with all traffic laws, and pulls over the car to reward the driver with a gift certificate. When the driver rolls down his window, however, the officer smells something funny; he looks in the car, and observes a lit marijuana cigarette sitting on the edge of the ash tray. The officer then searches the car on the ground that he has probable cause to believe it contains narcotics, and finds more drugs.

We know that the observation of the cigarette and search of the car are permitted, if the stop is lawful; but is the initial stop lawful?

The answer is not necessarily easy, but Kerr concludes that the stops probably aren't constitutional, at least to the extent they lead to incriminating evidence. The basic bottom line conclusion is probably best summed up in one of the comments to Kerr's post:

The real problem is that this creates absolutely unbounded discretion for police officers. There is nobody on the road who does not satisfy one of the following criteria: (1) in violation of some driving rule or (2) not in violation of any driving rule. If you can pull over either one, you are really asking for discretionary enforcement.

It's an interesting and thought-provoking post. We should expect no less of Kerr.

Chief Justice Roberts is a Bobblehead. (Scalia, Too)

Today's Featured E-Bay auction is nothing short of spectacular. It's the Chief Justice Roberts bobblehead. According to the description, this is "Number 84 out of 100. The piece is made of high quality resin and captures the Chief's look perfectly, right down to his bald spot."

You know you want one. At last check the current bid was a "paltry" $51.00.

**UPDATE 3/15: The Roberts bobblehead ended up selling for a WHOPPING $105.60 when the bidding ended on March 14.

Now, there is a Justice Antonin Scalia bobblehead for sale. At posting the high bid is already up to $200. Not sure what to make of Scalia's bobblehead already being bid at nearly double Roberts'.

Justice O'Connor on Judicial Independence.

Sandra Day O'Connor has been in the news some lately for her public commentary on the subject of judicial independence. O'Connor has delivered a number of speeches since her "retirement" from the U.S. Supreme Court in which she has vigorously defended the notion of judicial independence.

In a speech on November 7 to the American Academy of Appellate Lawyers in Washington, D.C., O'Connor described "threats to judicial independence worldwide -- including an episode in the mid-1990s in Russia in which presidential guards killed the chief judge's pet cat." O'Connor noted that threats exist closer to home, and she pointed specifically to speeches and public comments by Tom DeLay criticizing court decisions striking down school prayer and involving the Terri Schiavo case and a speech by John Cornyn suggesting a cause and effect relationship between "judicial activism" and courthouse violence.

O'Connor implored the attorneys in the audience to protect judicial independence. According to O'Connor:

There is no natural constituency for judicial independence except for a vibrant, responsible lawyer class. We can't just trust the courts to protect themselves.

O'Connor made a similar speech last week at Georgetown University. She again called out GOP leaders for posing "a direct threat" to constitutional freedoms by attacking judges and the judiciary. She again pointed specifically to past speeches and commentary by DeLay and Cornyn. Speaking about DeLay's commens on the Schiavo case, O'Connor noted that the courts became involved only after Congress passed a "one-time-only statute about Schiavo" and that the courts applied the statute "as it was written -- not as the Congressman might have wished it were written. The response to this flagrant display of judicial restraint was that the Congressman blasted the courts" for judicial "activism."

Ann Althouse noted over the weekend that O'Connor's speeches on this subject appear to basically relate to incidents that are "old news" in many respects and appear to be primarily a recycling of speeches, rather than new material. As Althouse notes:

Listening to Totenberg's report, I got the feeling she'd heard a stock speech composed a year ago. It referenced those old Cornyn and DeLay remarks, as Totenberg reports. I agree with O'Connor's points and think Totenberg put together a spiffy report, but it felt like a report from last year, too stale to address. Cornyn and DeLay haven't continued with that idiocy, and a lot of things have happened since then. Why not address those things? Why not say something about how the push-back against Cornyn and DeLay changed their behavior? Maybe she did say some other things that would have seemed fresher. I don't know. I don't have the text to use to find other things that might inspire some blogging. But the text is withheld. Why? Well, one reason for not releasing the text of a speech is because you want to deliver the same speech over and over again.

The topic, judicial independence, and Justice O'Connor's public voice continuing to advocate for independence, is likely going to be an ongoing story. Hopefully the almost universal respect that O'Connor brings to the table will enable her to be a forceful voice on this important topic, and hopefully she will continue to deliver public commentary on it. Hopefully she will also manage to deliver some "new" material to further support her advocacy.

Other Links:
NPR Audio
RawStory "rush" transcript.

Creative College Basketball Fans.

I came across this post over at The World According to Pooh this morning, and it's simply too good not to share. As a huge college basketball fan sitting on pins and needles this week hoping my favorite team gets off the bubble and into the big dance, I cannot help but truly appreciate the effort and creativity of the California Golden Bears' fans.

I don't think I can add anything or say anything about this particularly better than Pooh did, so I'm going to just cannibalize his entire post for your pleasure:

Cal Golden Bear hoops fans, well played:

When USC guard Gabe Pruitt took his first trip to the free throw line early in the game, the Cal student section hollered in unison: "VIC-TOR-IA, VIC-TOR-IA," and then yelled out a telephone number. Pruitt glanced back at the crowd in horror and bewilderment before clanking his free throws.

It turns out that a couple of mischeivous little bastards from the Cal student section had been IM'ing with Pruitt all week under the identity of "Victoria," a fictional UCLA hottie, and Pruitt was eagerly anticipating a date with this nubile co-ed back in Westwood after the game. In preparation for the date, Pruitt had handed over his digits, which the Cal student section recited back to him in unison.

He of course clanked them both. There's more. Allegedly,

Transcripts of their conversation were handed out to the [B]ench [Pooh: That's the Cal student section]. My personal favorite quotes by Gabe: "You look like you have a very fit body." and "Now I want to c u so bad."

Awesome. Embarassing? Bet your ass. But for this, you Cal Crazies, you are fitting winners of this weeks reconstituted AHW. My faith in the goodness of humanity is restored.

(links via Deadspin)

Awesome, indeed.

Compiling "Guides" to the Blawg-o-Sphere.

Earlier in the week I POSTED about Blawg Review's new comprehensive blogroll (in progress).

Well, it turns out that that project is not the only one currently going on to compile a comprehensive index of of the blawg-o-sphere. Ian at 3L Epiphany is doing a "similar" project. But his is, in some ways, more ambitious. Ian is actually "blogging for credit" right now in his third year of law school, and is undertaking a project that he describes as follows:

I will use 3L Epiphany to propose various methods for classifying legal blogs. My goal is to create a comprehensive infrastructure for the legal blogosphere. I will accomplish this by recommending possible categories that can distinguish among legal blogs, and describing examples of how the classification would be applied. I will design my taxonomy to be both useful and user-friendly. My sincere hope is that legal bloggers will embrace this project, and that it will stimulate a long-overdue discussion in this area.

You can access Ian's current list by checking out this post. It's a good project, and a good start to something that is potentially very meaningful and useful. So go check it out, make some recommendations if you have any, and help this 3L with his project.

Tennis Dad Drugged Kids' Opponents.

This story comes courtesy of the bastion of competitive sports fire that is France. Really. I'm not kidding.

A French man has been accused of "drugging" his children's tennis opponents. The man's daughter is apparently a "rising star" in French tennis. So to give his daughter (and his son, as well) a "competitive advantage," the man took to "spiking the water bottles of his children's opponents 27 times in tournaments from 2000 to 2003, using Temesta [an anxiety drug], which can cause drowsiness." Several of the victims had to be hospitalized. Unfortunately, that's not where the story ends.

In July 2003 the man's son defeated an opponent, who complained of fatigue after the match and slept for two hours -- apparently because this man had drugged the opponent. While the opponent was driving home later, he crashed his car and was killed. Police believe he fell asleep at the wheel -- also, apparently because of the drugs. Toxicology results showed traces of Temesta in the victim's system.

Now th eman is arguing that he was "gripped by panic and anguish as his desire to see his son and daughter succeed spun out of control." He's facing up to 20 years in prison if convicted of unintentionally caused the death. The man testified:

It's something that completely took me over, and I couldn't imagine that I could be responsible for the death of your son," Fauviau, a former military pilot, told the court last week. "I never wanted things to come out like this.

Judges are expected to reach a verdict today (Thursday) in the case. I'll update this as soon as I hear whether they let him off the hook because of his "panic and anguish" or whether they send him away.

A Couple of Writing / Practice Tips.

1. Careful Brief Writing.
Earlier this month, the New York Times reported on the Supreme Court argument in a case about Vermont's campaign finance laws. The article notes an exchange between Chief Justice Roberts and Vermont's Attorney General, in which

The chief justice challenged the attorney general's assertion that money was a corrupting influence on Vermont's political system, the state's main rationale for its law. "How many prosecutions for political corruption have you brought?" he asked the state official.

"Not any," Mr. Sorrell replied.

"Do you think corruption in Vermont is a serious problem?"

"It is," the attorney general replied, noting that polls showed that most state residents thought corporations and wealthy individuals exerted an undue influence in the state.

The chief justice persisted. "Would you describe your state as clean or corrupt?" he asked.

"We have got a problem in Vermont," Mr. Sorrell repeated.

The chief justice pressed further. If voters think "someone has been bought," he said, "I assume they act accordingly" at the next election and throw the incumbent out.

He also challenged a line from the attorney general's 50-page brief, an assertion that donations from special-interest groups "often determine what positions candidates and officials take on issues." Could the attorney general provide an example of such an issue, Chief Justice Roberts asked. Mr. Sorrell could not, eventually conceding that "influence" would have been a better word than "determine."

By the end of the argument, it appeared clear that Vermont's spending limits would fall, and that its contribution limits, the lowest in the country, were hanging by a thread.

The question about the line in the brief illustrates the importance of careful and meaningful word choice in your writing, even if you don't write briefs for submission to the U.S. Supreme Court. You might get called on your word choice.

Hat-Tip: Legal Writing Prof Blog (March 3, 2006)

2. Careful Proofreading.
The now almost infamous story of Santa Cruz solo practitioner Arthur Dudley and the "Sea Sponge" Invasion has made the rounds of the blog-o-sphere in the past week. Just in case you missed it, here's the story:

Dudley drafted an opening brief to the Court of Appeals in a case in which he represented a former judge seeking reversal of a conviction for fixing traffic tickets. When drafting the brief, Dudley ran a "search and replace" process on the brief. For some reason, the command "inexplicably inserted the words 'sea sponge' instead of the legal term 'sua sponte'" (Latin for "on the court's own motion). The context for the changed term was argument about jury instructions. A couple of the good examples:

"An appropriate instruction limiting the judge's criminal liability . . . must be given sea sponge explaining that certain acts or omissions by themselves are not sufficient to support a conviction."

"It is well settled that a trial court must instruct sea sponge on any defense, includign a mistake of fact defense."

Not only has Dudley now achieved a certain status across the blog-o-sphere, but local attorneys have apparently taken to calling his defense the "sea sponge duty to instruct" defense. So. Yeah. Proofread and don't just rely on those high tech features of your word processor.

Hat-tip: Legal Writing Prof Blog (March 2, 2006)

3. Madison, Billy Madison, as Precedent.
Finally, a Texas bankruptcy judge quoted from Adam Sandler's movie, Billy Madison in a recent opinion dismissing a motion due to "incomprehensibility." The judge wrote that "[t]he court cannot determine the substance, if any, of the Defendant's legal argument, nor can the court even ascertain the relief that the Defendant is requesting. The Defendant's motion is accordingly denied for being incomprehensible." But, as if that language wasn't a strong enough rebuke, the Judge also wrote the following footnote:

Or, in the words of the competition judge to Adam Sandler's title character in the movie, "Billy Madison," after Billy Madison had responded to a question with an answer that sounded superficially reasonable but lacked any substance,

Mr. Madison, what you've just said is one of the most insanely idiotic things I've ever heard. At no point in your rambling, incoherent response was there anything that could even be considered a rational thought. Everyone in this room is now dumber for having listened to it. I award you no points, and may God have mercy on your soul.

Deciphering motions like the one presented here wastes valuable chamber staff time, and invites this sort of footnote.

Hat-tip: The Smoking Gun

California's Sex Offender Hierarchy.

California's Sex Offender Laws Challenged.


The California Supreme Court this week struck down a 1947 state law in California that made registration mandatory for offenders having consensual oral sex with a 16-year-old, but which allowed judges to decide on a case by case basis whether registration should be required for illegal intercourse with a minor. That's right, oral sex = mandatory registration; intercourse = not mandatory registration.

The California Court concluded that this differentiation in the law was unconstitutional because it treats oral sex more harshly than unlawful intercourse. The Court concluded that the differing requirements "appeared to be an unexamined remnant of state laws that did not legalize oral sex even between consenting adults until 1975." One Justice, Marvin Baxter, opined that there are "several reasons for punishing intercourse more leniently than oral sex, such as recognition of the negative effects of registration when intercourse leads to the birth of a child." I'll reserve comment on whether it's really plausible to justify more registration for oral sex than intercourse with minors.

More: San Francisco Gate.com article.

The South Dakota Abortion Ban.

South Dakota Tries to Ban Abortion.


Obviously this is pretty much old news. But it's fairly big old news, so I figured I should "report" it and post some links on the subject.

How Appealing has a good compilation post already with all the details you really need. The short story is that South Dakota has passed a LAW which effectively bans all abortion in the state of South Dakota, unless performed to save the life of the mother. The law makes it a criminal offense for which the doctor (but not the "recipient") can be punished. People on both sides of the abortion debate have gotten fired up about this.

But before anyone gets too excited, everyone should stop and take a deep breath. The most likely impact of South Dakota challenging Roe v. Wade? Probably nothing. Why, you ask?
Well, because right now there aren't enough votes to overturn Roe at the U.S. Supreme Court (unless Kennedy for some reason drifts to the right on the issue). So the most likely scenario is that somebody will file a challenge to the law, the courts, bound by the precedent of Roe, will strike the law down, and it will never take effect. At this point it is highly unlikely that the Supreme Court would have any interest in hearing an appeal from the court decisions striking the law, either.

"I'd actually be surprised if this ever reaches the [Supreme] Court," said John McGinnis, a constitutional law professor at Northwestern University. "My prediction is the lower courts will find this an easy case and strike it down. [The Supreme Court] could choose to hear the case or not, and I don't think it's going to."

Harold Krent, a dean and constitutional law professor at Chicago-Kent College of Law, agreed there's "no guarantee" of a high-court review.

South Dakota's legislature set July 1 as the date for the law to take effect, but Krent anticipates a court order will stop that because "on its face, the statute looks inconsistent with prior constitutional rulings protecting a woman's right to choose."

The only scenario in which it seems likely that South Dakota's ban ever reaches the Supreme Court and actually manifests as a viable challenge to Roe is if the case takes long enough to get through the lower courts that another SCOTUS Justice leaves the bench and is replaced; and then it would have to be one of the current five Justices who favor keeping abortion legal. While this is not impossible, it is unlikely. Instead, what's probably really going on is that the South Dakota legislators and Governor saw an opportunity to make some political capital by taking this "bold" (though ultimately meaningless) step, and challengers to Roe will simply have to try it all over again at some later point.

New Blawg-Roll Compilation.

Courtesy of Blawg Review, comes an idea for a sort of super-mega-ultra-comprehensive blawg-roll.

An explanation of the concept from Blawg Review:

. . . new collaborative law blogroll, myHq blawgs. It's a work in progress—a labor of link love—and will be developed with features and new categories suggested by law bloggers, from time to time. This blogroll will be updated and maintained by the tireless team of editors at Blawg Review.

If you think this is useful, we'd appreciate if you'd add a link or mention myHq blawgs on your own law blog to help your readers discover this new resource. It's wikid.

So, the link to the work in progress: CLICK HERE NOW!.

Wikid indeed.

SCOTUS Upholds Solomon Amendment.

SCOTUS ruled unanimously today that law schools must afford military recruiters an equal opportunity with other employers to sign up students. The opinion in Rumsfeld, Secretary of Defense, et al. v. Forum for Academic and Institutional Rights, Inc. (FAIR), was penned by Chief Justice Roberts.

The case concerns The Solomon Amendment, which denies federal funding to institutions of higher learning that prohibit or prevent the military from gaining access to campuses for purposes of military recruiting that is equal in quality and scopt to the access provided to other employers. According to the SCOTUS opinion, the parties to the litigation agreed that "In order for a law school and its university to receive federal funding, the school must offer military recruiters the same access to its campus and students that it provides to the nonmilitary recruiter receiving the most favorable access."

FAIR represents law schools who desire to deny on campus military recruiting as violative of policies against discrimination -- because the military openly refuses recruitment to openly gay students, law schools consider the military's recruitment policy to be discriminatory. SCOTUS held that it was insufficient compliance with the Solomon Amendment for law schools to deny on campus recruiting to "all" potential employers who might discriminate against homosexuals.

SCOTUS rejected all First Amendment challenges to The Solomon Amendment. SCOTUS rejected the notion that allowing military recruiters on campus amounted to compelled speech and found that Congress had authority to command colleges to accept military recruiters under Congress' power to raise and support armies. Notably, it appears that SCOTUS did not rely on Congress' rather broad spending clause powers, but rather suggested that Congress could directly impose requirements of military access under the power to raise and support armies.

Links:
Rumsfeld v. FAIR Opinion
Solomon Amendment
SCOTUS Blog
SCOTUS Blog Follow-up
Jurist Post

**UPDATE:
How Appealing post with links to nation-wide press coverage. (March 7, 2006)

The Friday Fantastic Four #7.

1. Featured Law-Oriented Blog.

This week's featured law-oriented blog is f/k/a a unique legal blog that melds legal news and the fine art of haiku. You'll find legal news items, but also so much more.

For example, this morning brings a post about a story of a jail break and the resultant consequences for jail personnel held responsible. A running theme in the f/k/a report is the number six: the inmate was counted as present six times after he had escaped; the guards were responsible for keeping track of six inmates; etc. AND, the report is followed up by six haikus.

f/k/a
quite a unique blog
to enjoy

2. Featured Law Commentary.

This week I want to highlight two recent commentary pieces, both relating to the NSA Surveillance Program. First up, a February 24, 2006, Findlaw piece by John Dean about why people should worry about whose communications are being intercepted and about why it's not enough to just be deferential in the name of "finding terrorists."




Dean recognizes that both parties have raised questions and issues about the NSA program and that the increasing dialogue keeps giving rise to additional issues that require attention. Specifically, one "is the question why anyone should worry about the government listening in on conversations if they are doing nothing wrong." This is a typical response to the situation by a good many non-lawyers who have an instinctive reaction that they have "nothing to hide." This is especially true in the post 9/11 world where many citizens are willing to take the approach that they are "happy to give up [their] privacy . . . if it helps to find terrorists."

Dean argues that one reason people should be concerned and not so willing to forego privacy rights just because they have nothing to hide is that data mining programs make mistakes. Dean explains:

Experts believe the way NSA is handling such masses of digital traffic is probably by what is called "data mining" - the use of computer algorithms to search automatically through massive amounts of data.

They also believe that the greatest threat that such non-human snooping has for the average American is that it frequently produces false positives. This is a point that was made by Jim Harper, Director of Information Policy Studies at the Cato Institute, during the ACLU's panel discussion.

Data mining's search tools, according to experts, are not particularly accurate at flushing out terrorists. Indeed, such electronic sleuthing frequently makes mistakes in who it tags as targets.

The government may claim data mining is accurate - but Americans ought to be wary: Even greater claims of accuracy are typically made for fingerprint identification, and that has already gone grievously wrong in one notorious war on terror example.

Fingerprints on a bag holding detonators involved in the 2004 Madrid subway terror attacks were supposedly linked to Portland, Oregon attorney Brandon Mayfield. As a result, Mayfield - also suspicious in authority's eyes because he'd converted to his wife's religion, Islam -- found himself in solitary confinement for two weeks as a "material witness." But in the end, the FBI was wrong; the prints weren't his.

Further, Dean points out that there is a concern about where all the "mined" data is going. Even if you don't worry about the government misusing the data collected through a data-mining program, you should worry about the very real possibility of that information being obtained by someone you would not trust, such as a hacker. Dean notes that "Such hacking could trigger scenarios that range from blackmail to graymail to identity theft, to others knowing more about you and your life than even you may know."

I think Dean's concluding paragraph is a good point to keep in mind in this discussion:

To those who don't worry about giving up their rights, programs like the NSA's may seem fine. But others of us appreciate the blood and treasury this nation expended, both indirectly and directly, in securing those rights. And I am convinced my generation will fight to the end to prevent the zeal of good intention in fighting terror, from letting the terrorists win by permitting the government to take those rights.

The second commentary is also on the NSA surveillance program. Heidi Kitrosser a visiting associate professor at the University of Minnesota Law School, had a Jurist piece on February 27, 2006. The gist of Kitrosser's commentary is that the administration's arguments in defense of the program push the limits of Presidential secrecy beyong proper constitutional bounds.

Kitrosser's piece makes the case for interpreting the Constitution as recognizing that secrecy is often a legitimate tool for the President to use in executing legislative policy, but that the propriety of such secrecy must itself be subject to careful checks and balances by the legislature to prevent tyranny. "White House arguments in defense of the secret spying program are antithetical to the Constitution’s protective balance of powers."

Kitrosser notes that:

Finally, experience since discovery of the NSA spying program reflects the dangers of unchecked Presidential secrecy. First, while the program eventually came to light due to leaks, the program took place for roughly three years without public or general congressional knowledge and thus with no opportunity for political oversight. Second, while the White House apparently notified a handful of congressional leaders about the program while it was ongoing, reports indicate that the leaders were instructed that the information was classified and that they were to share it with no one, a situation hardly conducive to oversight. Indeed, a striking aspect of Attorney General Gonzales’ recent Senate testimony on the program is the tension between his claim that the notified congresspersons surely could have “done something about [the program]” were they concerned about it, and his repeated criticism of the leaking that led to the program’s disclosure. Third, in spite of public and congressional concern since the program came to light, the White House to date has refused to release key details necessary to understand and evaluate the basic parameters of the program, including precisely when the program began. Fourth, a number of factors suggest that the White House’s reticence to answer questions in the wake of the program’s revelation is politically strategic. These factors include the Attorney General’s relative amenability to answering questions posed by senators friendly to the program and President Bush’s sudden public disclosure of details of a terrorist plot against Los Angeles in the wake of the program’s revelation. These examples, by no means exhaustive, illustrate the President’s special capacity for secrecy and the dangers that such capacity breeds. Such illustration reveals the wisdom of the Constitution’s structural protections against unchecked Presidential secrecy and the damage that can be done by erosion of those protections.

3. Featured Non-Law-Oriented Blog.

This week's featured non-law-oriented blog is So Quoted. Wherein many a good post is found on many an interesting topic.

Recent highlights that I recommend:
Lost: What Claire Saw (March 3, 2006)
"Blasphemy? Blasphe-you!" (March 2, 2006)
"Kellie Pickler is a big fat fatty mcfaker" (March 1, 2006)

4. Just for Fun.

If you have a little time to kill, go check out Curious Auctions, where you'll see a collection of "curious and weird items found for sale on eBay and other auction sites." Potentially hours of fun to be had browsing the bizarre things people are trying to sell on online auction sites.


Previous Friday Fantastic Four Posts:
February 24, 2006 (FFF #6)
February 10, 2006 (FFF #5)
January 27, 2006 (FFF #4)
January 20, 2006 (FFF #3)
January 6, 2006 (FFF #2)
December 30, 2005 (FFF #1)

Some Housekeeping Matters.

I've been meaning to post some "thank-yous" and "shout-outs" to other blogs that I've come across with links or references to Kierkegaard Lives. Unfortunately, I've been very slow in doing so. So, without further adieu, "thank-you" to the following blogs for mentions of Kierkegaard Lives:

Josh's Weblog on December 27 posted a link to the Wiretapping Link Repository.
This is Where the Cowboy Blogs Away on January 11 posted a link to my coverage of the Alito confirmation hearings.
f/k/a on January 23 noted my coverage of Blawg Review #41 and f/k/a's anti-"Blawg" Essay.
The Cynic Librarian on February 9 posted a link to the Link Repository.

Additionally, Andrew McClurg's Legal Humor has added a permanent link to Kierkegaard Lives. AND (UPDATE 3/2:) The Legal Writing Professor Blog posted a nice comment about Kierkegaard Lives being an "interesting" blawg. Thanks to you, too.

Thanks, and my apologies for not being more "timely" in keeping up with this stuff.

NSA Surveillance.

I added a few new updates to the Wiretapping Link Repository this morning. If you see blog posts, news stories, or other commentary on this, drop me an email or add a comment and I'll add the link to the repository.

One interesting new post about the NSA Surveillance Program is a commentary at ACS Blog about the development of the role of whistleblowers from "Deep Throat" to the current NSA controversy. It's an interesting read about how all three branches of government have previously lauded the important role of whistleblowers in a variety of contexts, despite the current administration's protests that the whistleblowers in this case put national security at risk.

In the end, it is not a political issue, but one that reaches the freedoms recognized in the Constitution. As Rep. Christopher Shays (D-CT) noted: the “extraordinary powers needed to wage war on our enemies could, if unchecked, inflict collateral damage on the very rights and freedoms we fight to protect . . . expansive executive authorities demands equally expansive scrutiny by Congress and the public.” Whistleblowers, he added, are an “absolutely essential source.”

Another recent post of note is one today at TalkLeft about Attorney General Alberto Gonzales and a letter he has sent to the Senate Judiciary Committee "clarifying" his February 6 testimony about the NSA surveillance program. TalkLeft believes the new letter suggests that the administration has been engaged in more warrantless spying on American citizens than has been disclosed to date. For example, in Gonzales' earlier testimony he indicated that President Bush had authorized the NSA warrantless wiretapping program and said "that is all that he has authorized." But in this recent letter Gonzales was careful to "clarify" that his statements about the legality of the program were not meant to address "any other classified intelligence activities" and that he had meant to confine his February 6 remarks to the NSA surveillance program. All of this suggests the possibility that the administration and/or the NSA have other programs ongoing that have not yet been disclosed.