... and Justice for All

"there exists a threat to the integrity of the judicial proceedings" and that threat is posed by Donald Trump

As the felony criminal trial of Donald Trump approaches he found it necessary to try and intimidate the judge by attacking on social media the judge's daugther including posting photos. There's no defending that kind of conduct, and the arguments offered by Trump's lawyers were properly labeled as "farcical." Trump's point is to intimidate witnesses, to scare them, to cause them to change or withhold their testimony in a way that favors him. He is "a threat to the integrity of the judicial proceedings." 

Look, if you wish, for more lying and whining by Trump. 

Read the Trump a threat to integrity of judicial proceedings order

Robert L. Abell
www.RobertAbellLaw.com

The Government Cannot Lose in the Sixth Circuit

The Sixth Circuit's majority opinion in United States v. Carter is an embarassment and illustrates how far some members of that court will go to assure that the government can never lose a case in the court, no matter what it argues (or fails to argue) in its brief. 

Carter is a routine enough sentencing appeal. The defendant was sentenced to 108 months in a meth-trafficking case. He raised two points in support of a variance in the district court: (1) a policy argument that the sentencing guidelines as to methamphetamine overstate a defendant's culpability based on an archaic and incorrect theory that the greater the purity level of the relevant meth, the greater the defendant's culpability and, therefore also, his sentence; and, (2) his difficult personal circumstances. At the sentencing hearing, according to the Sixth Circuit majority, Judges Joan Larsen and John Nalbandian, the defendant "made only passing reference to his policy argument" and "focused primarily on his life experience and characterisistics." Also according to the majority, the district court also "focused on Carter's primary argument, his life experience and characteristics." The district court did state that it read Carter's sentencing memorandum, so it was aware and said it did presumably consider his policy argument. The district court announced the sentence and then asked: "Pursuant to United States v. Bostic, is counsel satisfied that I've addressed on the record all non-frivolous arguments asserted?" Parties for both counsel answered: "Yes, your Honor."

Carter argued on appeal that his sentence was procedurally unreasonable since the district court did not address or sufficiently consider his policy argument about the meth guidelines. The Sixth Circuit panel majority held that Carter had either waived the argument or had invited the district court's error and was foreclosed. Neither hold water; both are contrivances intended to nail shut even tighter the courthouse doors barring relief for criminal defendants in the Sixth Circuit. The contrivance is so extreme that Senior Circuit Judge Ronald Gilman was moved to author a concurring opinion in what otherwise was a flyspeck of a case. 

The majority's contrivance is on such shaky ground that it could not decide what it was, whether a waiver or invited error. It relied on the district court's reference to Bostic, although the majority allowed that the "Bostic preface is somewhat out of place because the question that immediately followed was not the Bostic question, though that question came later." Waiver is, as the majority noted, that intentional relinquishment or abandonment of a known right. But it is beyond the pale to find waiver on this record as Judge Gilman noted:

In the present case, the district court expressly stated tha tits quesiton was "[p]ursuant to United States v. Bostic" immediately before asking a question that, as the majority acknowledges, "was not the Bostic question." I fully agree with the majority that the invocation of Bostic was "somewhat out of place," which makes one hard-pressed to characterize counsel's response as an intentional relinquishment or abandonment of Carter's right to object. The doctrine of waiver, therefore, is simply beyond the pale based on the record before us.

This seems simple enough: a party can't be judged to have waived an argument on point A, if it is asked about something other than point A. 

But neither did the majority decide that Carter had invited the district court's error. Instead, it dodged that question and asserted that it only considered arguments where a party had invited error below where there would otherwise be a manifest injustice. Apparently, the majority concluded that there would be no manifest injustice because the government could not be sufficiently faulted for not insisting the district court address Carter's policy argument ("the government is not equally at fault for the alleged error"). 

Notably and as Judge Gilman's concurrence observed, "the government did not argue that Carter either waived his policy-based argument or invited the district court's error." In other words, the majority contrived wholly its squishy we're really not sure why we're deciding defendant loses but he does because the government can't rationale. 

Remember the rule in the Sixth Circuit: the government can't waive or forfeit an argument, but a reason can always be contrived that the defendant can and did. 

The majority's opinion is an embarassment and an abomination; the best thing about it is that it will be largely if now wholly ignored in the future. 

Robert L. Abell
www.RobertAbellLaw.com

 

The Inside Story of the Supreme Court's Dobb Decision; the Signs Point to a Justice as the Leaker

The New York Times ran an excellent piece, Behind the Scenes at the Dismantling of Roe v. Wade, on the Supreme Court's machinations to fundamentally alter the lives of women in the United States by its decision in Dobbs v. Jackson Women's Health. Surely everyone remembers that Justice Alito's draft opinion was leaked some several weeks before it was officially issued. A reasonable inference to be drawn from the article is that Justice Samuel Alito leaked it himself and did so to deter Justice Brett Kavanaugh from joining a possible opinion by Chief Justice John Roberts and Justice Stephen Breyer that would have trimmed Roe v. Wade significantly but not overruled it and lead to travesties such as we saw last week in Texas, A Texas Case That Shows Abortion Exceptions Are A Sham and What Happened to Kate Cox Is Tragic and Completely Expected. 

Some side notes on Samuel Alito and his ethics: Alito Took Luxury Fishing Vacation With GOP Billionaire That Later Had Cases Before the Court and Samuel Alito Joins Supreme Court's Billionaires' Club. 

A Federal Judge Asks: Does the Supreme Court Realize How Bad It Smells?

In the Age of Trump, the question answers itself: No and it doesn't care. 

Robert L. Abell
www.RobertAbellLaw.com

Second Amendment violated by prosecution of admitted pot smoker for possession of firearms

Federal law makes it illegal and a felony for a regular user of illegal drugs, as marijuana continues to be in a number of states and under federal law, to possess a gun or firearm. The U.S. Court of Appeals for the Fifth Circuit has ruled that a prosecution for violating this law violates the Second Amendment in United States v. Daniels. 

The defendant, Daniels, was stopped for driving without a license plate. There were some marijuana cigarette butts in his car's ashtray, but he wasn't high when he was pulled over. He also had in the car two loaded firearms: a 9mm pistol and and a semi-automatic rifle. He was indicted and found guilty of violating 18 U.S.C. § 922(g)(3). The Fifth Circuit reversed the conviction and ordered that the indictment be dismissed. 

The key to the ruling is that Daniels, the defendant, was not shown to be high, or stoned or intoxicated by marijuana or anything else when he was stopped. So the question really was: does the Second Amendment allow prosecution for possession of firearms of someone who sometimes smokes marijuana but who was not shown to be impaired or affected by it when he was stopped and found to have some guns in his car? No, the Fifth Circuit answered; our Nation does not have a historical tradition of disarming our citizens perpetually and at all times just because they might on occasion smoke some weed or have a drink or two too many. 

The ruling is the latest affirmation from the Fifth Circuit of the right to keep and bear arms enshrined in the Constitution by the Second Amendment. 

Robert L. Abell
www.RobertAbellLaw.com

 

Judge that told defendant he "looks like a criminal to me" should have recused, Sixth Circuit rules

District Judge Stephen J. Murphy of the United States District Court for the Eastern District of Michigan became exasperated with a defendant and remarked:

This guy has got my attention, Mr. Arnone [defense counsel]. What do you want me to do? This guy looks like a criminal to me. This is what criminals do. This isn't what innocent people, who want a fair trial do. He's indicted in Kentucky. He's indicted here. He's alleged to be dealing heroin, which addicts, hurts and kills people, and he's playing games with the Court. Do you agree?

About a year and a half later, after numerous pretrial hearings and proceedings, Judge Murphy presided over the trial where the defendant was found guilty and then imposed a sentence of 127 months. 

The Sixth Circuit ruled that Judge Murphy should have recused, vacated the conviction and sentence and remanded the case for trial before another district judge. First, Judge Murphy's remark that the defendant "looks like a criminal to me" would indicate to a reasonable observer that the judge had prejudged the defendant's guilt based on his physical appearance. Second, Judge Murphy's remarks that "I'm tired of this case" and "I'm tired of this defendant" also indicated prejudgment of guilt. Third, that the defendant went through a series of lawyers did not make Judge Murphy's impatience understandable to the Sixth Circuit, although the government, of course, saw it otherwise:

To the contrary, we do not find the district judge's conduct understandable in the least. The complexity or long duration of a criminal case gives no license to a district court to prejudge the defendant's guilt or otherwise dispose of the case in any manner except through fair proceedings. And if [defendant] was more persistent than most defendants in pursuing his constitutional right to  proceed to a jury trial on the merits, the district judge had ample means available to him to rule on any issues [defendant] raised and to keep the proceedings on track. 

The defendant moved for Judge Murphy's recusal right before his trial started. In fairness to Judge Murphy, he did apologize, more or less, for his earlier remarks and assured the defendant he would get a fair trial. That didn't cut any ice with the Sixth Circuit which observed that Judge Murphy "could have acted sua sponte to address the issue of recusal, or at least to convene a hearing to discuss with the parties the need for recusal." 

The case is United States v. Liggins. See also Appeals court scolds federal judge for saying defendant 'looks like a criminal'; After federal judge says Black man "looks like a criminal to me," appeals court tosses man's conviction.

Robert L. Abell
www.RobertAbellLaw.com

Are felon in possession of a firearm prosecutions unconstitutional under Second Amendment?

There is a good argument that felon in possession of a firearm prosecutions for violating 18 U.S.C. § 922(g)(1) by the federal government are unconstitutional and violate the Second Amendment. This argument comes from the Supreme Court's monumental Second Amendment decision last year in New York State Rifle & Pistol Ass'n v. Bruen, and the "originalist" theory of the Constitution that has become the currency of the Supreme Court's Republican-appointed majority. 

Constitutional originalism posits this: "Constitutional rights are enshrined with the scope they were understood to have when the people adopted them.’ The Second Amendment was adopted in 1791; the Fourteenth in 1868." Bruen, 142 S.Ct. at 2136. Fair enough; so the questions then become what was understood about the federal government's powers under the Second Amendment in 1791? Was it understood to have some, none or unbounded power to limit the right to keep and bear arms? 

The historical evidence indicates that in 1791 and for at least 100 years or so afterwards the it was understood that the Second Amendment allowed the federal government, a government of limited, enumerated powers, no authority to regulate or limit the right to keep and bear arms. Here's just a few pieces of that evidence:

James Madison wrote in the Federalist Papers, No. 45 that the states, not the federal government, would exercise the general police powers of government, that is, the "powers reserved to the several states will extend to all the objects, which, in the ordinary course of affairs, concern the lives, liberties, and properties of the people; and the internal order, improvement, and prosperity of the state." 

A constitutional law treatise, A View of the Constitution of the United States, published in 1829 and authored by William Rawle offered that: "No clause in the Constitution cold by any rule of construction be conceived to give Congress a power to disarm the people."

Two decisions by the Supreme Court after the Civil War remarked that the Second Amendment forbade the federal regulation of the right to keep and bear arms. In United States v. Cruikshank, 92 U.S. 542, 553 (1875), the Court stated: “The Second Amendment declares that [the right to keep and bear arms] shall not be infringed; but this, as has been seen, means no more than that it shall not be infringed by Congress.” Barely ten years later in Presser v. Illinois, 116 U.S. 252, 265 (1886), the Court reiterated that the Second Amendment “is a limitation only upon the power of Congress and the national government and not upon that of the states.”

So at and around the time the Second Amendment was adopted in 1791, in the few decades thereafter and continuing for nearly 100 years, it was understood that the Second Amendment allowed Congress no power to disarm American citizens. It seems inescapable that the Second Amendment, as understood when it was adopted in 1791 and continuing for more than a century after that, allows Congress no authority to limit or regulate the right to keep and bear arms. That means the prosecution of anyone for violating 18 U.S.C. § 922(g)(1) is unconstitutional. 

So far only two courts, the en banc U.S. Court of Appeals for the Third Circuit, Justice Sam Alito's former court, in Range v. Attorney General, and the United States District Court for the Southern District of Mississippi, Hon. Carlton K. Reeves, who is also Chairman of the United States Sentencing Commission, in United States v. Bullock, have ruled that the Second Amendment, as the Bruen decision commands it be applied, prohibits the prosecution of the plaintiff in Range and the defendant in Bullock. In other words, only two courts have ruled that the Second Amendment renders § 922(g)(1) unconstitutional as to those individuals. 

This conclusion -- that the Second Amendment allows the federal government no authority to limit or regulate the right to keep and bear arms -- does not mean that a state government may not do so; the historical evidence regarding the scope of the states' power to regulate firearm possession is much more mixed. 

Robert L. Abell
www.RobertAbellLaw.com 

Does the federal government have any power to regulate or limit Second Amendment rights to keep and bear arms?

Since the Supreme Court's decision last June in New York State Rifle & Pistol Ass'n v. Bruen, there has been a near-tidal wave of litigation as to Second Amendment issues. The most frequent of these are motions to dismiss indictments charging violation of 18 U.S.C. § 922(g)(1), which makes it a crime for someone previously convicted of a felony (or its equivalent) from possessing a firearm. So far only two courts, the en banc U.S. Court of Appeals for the Third Circuit, Justice Sam Alito's former court, in Range v. Attorney General, and the United States District Court for the Southern District of Mississippi, Hon. Carlton K. Reeves, who is also Chairman of the United States Sentencing Commission, in United States v. Bullock, have ruled that the Second Amendment, as the Bruen decision commands it be applied, prohibits the prosecution of the plaintiff in Range and the defendant in Bullock. In other words, only two courts have ruled that the Second Amendment renders § 922(g)(1) unconstitutional as to those individuals. 

Judge David Porter of the Third Circuit in a concurring opinion in Range raised the issue of whether the federal government had any power or authority to regulate or limit Second Amendment rights to keep and bear arms. The Supreme Court hasn't considered this question. There is a strong argument that the Second Amendment allows the federal government no power or authority to limit or regulate the right to keep and bear arms. The argument proceeds as part and rests on the "originalist" theory of the Constitution that has become the currency of the Supreme Court's conservative, Republican-appointed majority. 

Constitutional originalism posits this: "Constitutional rights are enshrined with the scope they were understood to have when the people adopted them.’ The Second Amendment was adopted in 1791; the Fourteenth in 1868." Bruen, 142 S.Ct. at 2136. Fair enough; so what was understood about the federal government's powers under the Second Amendment in 1791? Was it understood to have some, none or unbounded power to limit the right to keep and bear arms? 

The historical evidence indicates that in 1791 and for at least 100 years or so afterwards the it was understood that the Second Amendment allowed the federal government, a government of limited, enumerated powers, no authority to regulate or limit the right to keep and bear arms. Here's just a few pieces of that evidence:

James Madison wrote in the Federalist Papers, No. 45 that the states, not the federal government, would exercise the general police powers of government, that is, the "powers reserved to the several states will extend to all the objects, which, in the ordinary course of affairs, concern the lives, liberties, and properties of the people; and the internal order, improvement, and prosperity of the state." 

A constitutional law treatise, A View of the Constitution of the United States, published in 1829 and authored by William Rawle offered that: "No clause in the Constitution cold by any rule of construction be conceived to give Congress a power to disarm the people."

Two decisions by the Supreme Court after the Civil War remarked that the Second Amendment forbade the federal regulation of the right to keep and bear arms. In United States v. Cruikshank, 92 U.S. 542, 553 (1875), the Court stated: “The Second Amendment declares that [the right to keep and bear arms] shall not be infringed; but this, as has been seen, means no more than that it shall not be infringed by Congress.” Barely ten years later in Presser v. Illinois, 116 U.S. 252, 265 (1886), the Court reiterated that the Second Amendment “is a limitation only upon the power of Congress and the national government and not upon that of the states.”

So at and around the time the Second Amendment was adopted in 1791, in the few decades thereafter and continuing for nearly 100 years, it was understood that the Second Amendment allowed Congress no power to disarm American citizens. It seems inescapable that the Second Amendment, as understood when it was adopted in 1791 and continuing for more than a century after that, allows Congress no authority to limit or regulate the right to keep and bear arms. That means the prosecution of anyone for violating 18 U.S.C. § 922(g)(1) is unconstitutional. 

This conclusion -- that the Second Amendment allows the federal government no authority to limit or regulate the right to keep and bear arms -- does not mean that a state government may not do so; the historical evidence regarding the scope of the states' power to regulate firearm possession is much more mixed. 

Robert L. Abell
www.RobertAbellLaw.com 

Traffic Stops on I-70 in Kansas Unconstitutional Federal Judge Rules

"The Kansas two-step" is what a practice by state troopers in Kansas of stopping cars with out-of-state license plates ruled unconstitutional by a federal judge. The New York Times reports: Kansas Troopers 'Waged War on Motorists,' Federal Judge Finds. The following sums up the Court's ruling:

“The war is basically a question of numbers: stop enough cars and you’re bound to discover drugs,” wrote Senior Judge Kathryn H. Vratil of the Federal District Court. “And what’s the harm if a few constitutional rights are trampled along the way?” 

Always nice, especially given its rarity, to see a federal judge sticking up for the rights of ordinary citizens. The Fourth Amendment to our Constitutional prohibits unreasonable searches and seizures of our persons and things. 

Robert L. Abell
www.RobertAbellLaw.com

Is Justice Kavanaugh Up to the Job?

Evidence is mounting that Brett Kavanaugh is just not up to the job of Supreme Court Justice; see The Supreme Court Has a Clear Intellectual Lightweight on Slate. 

Kavanaugh has the same failings as Clarence Thomas: neither of them ever worked as a real lawyer and so their stuck with their limited experience allowing little appreciation for how their rulings play out and apply (or not) in the real world. Barrett's likely to prove the same but it's too early to tell. 

Robert L. Abell
www.RobertAbellLaw.com

Whatever Happened to Ethics on the Supreme Court? We're Looking at You, Thomas and Alito

Anyone not supremely disappointed by reporting recently on what will be generously labeled the massive, ethical lapses of Supreme Court Justices Clarence Thomas and Samuel Alito should reconsider and a good place to get back on the right track is this guest essay, Does The Supreme Court Realize How Bad It Smells?, in the New York Times by U.S. District Judge Michael Ponsor. Here's a summary of Judge Ponsor's concerns:

The recent descriptions of the behavior of some of our justices and particularly their attempts to defend their conduct have not just raised my eyebrows; they’ve raised the whole top of my head. Lavish, no-cost vacations? Hypertechnical arguments about how a free private airplane flight is a kind of facility? A justice’s spouse prominently involved in advocating on issues before the court without the justice’s recusal? Repeated omissions in mandatory financial disclosure statements brushed under the rug as inadvertent? A justice’s taxpayer-financed staff reportedly helping to promote her books? Private school tuition for a justice’s family member covered by a wealthy benefactor? Wow.

The worst offenders by far have been Thomas and Alito, but they are not alone. Ladies and gentlemen, that's not how it's done.

Robert L. Abell
www.RobertAbellLaw.com