Prop 8 Appeal Takes A Step Forward; But Not The Big One It Should Have

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Liberty & Justice by Mirko Ilic

Those of us watching and covering the Proposition 8 case, formally known as Perry v. Brown, got a cryptic notification from the court yesterday afternoon. The notice read:

This is to inform you that a filing is expected on Tuesday, June 5, 2012, at approximately 10 a.m., in Perry v. Brown, case 11-16577, also know as the Proposition 8 case. The filing will be available from the Ninth Circuit Court of Appeals website, www.ca9.uscourts.gov/opinions. We are advised that this is not a large document. If you have difficulty downloading the filing, please contact us by email.

The fact the court said the document would appear in their “opinions” section seemed prophetic. It was. The opinion was just released and my prediction on it was right, it did signal a final opinion and a declination of en banc consideration.

Here is the order. The key takeaway language:

The full court was advised of the petition for rehearing en banc. A judge requested a vote on whether to rehear the matter en banc. The matter failed to receive a majority of the votes of the non-recused active judges in favor of en banc consideration. Fed. R. App. P. 35. The petition for rehearing en banc is DENIED.

The mandate is stayed for ninety days pending the filing of a petition for writ of certiorari in the Supreme Court. If such a petition is filed, the stay shall continue until final disposition by the Supreme Court.

Notable is the sniping dissent lodged by Judges O’Scannlain, Bybee and Bea, and the broadside shot right back by Steve Reinhardt and Mike Hawkins, who were the accused when O’Scannlain said:

Based on a two-judge majority’s gross misapplication of Romer v. Evans, 517 U.S. 620 (1996), we have now declared that animus must have been the only conceivable motivation for a sovereign State to have remained committed to a definition of marriage that has existed for millennia, Perry v. Brown, 671 F.3d 1052, 1082 (9th Cir. 2012).

Interesting is the sniping back and forth, but ultimately of no moment. The ruling today is important, however, because the ultimate destination for the Prop 8 Perry case is now straight to the Supreme Court. As I explained when the original panel decision was issued, authored by Steve Reinhardt, it was different than expected:

It is a narrower and shallower victory than I had hoped and predicted though.

All that Proposition 8 accomplished was to take away from same-sex couples the right to be granted marriage licenses and thus legally to use the designation of ‘marriage,’ which symbolizes state legitimization and social recognition of their committed relationships. Proposition 8 serves no purpose, and has no effect, other than to lessen the status and human dignity of gays and lesbians in California, and to officially reclassify their relationships and families as inferior to those opposite-sex couples. the Constitution simply does not allow for “laws of this sort.” Romer v. Evans, 517 US 620, 633 (1996).

By basing on Romer instead of the full constitutional protections of due process and equal protection, the court has likely increased the odds the decision stands up to further appeal, but has done a disservice to those seeking true equality, both as to marriage and otherwise, for gays and lesbians. In short, it does not move the ball nearly as much as it should have, and was hoped for. The decision of the 9th does not go nearly as far as Vaughn Walker did, and wastes much of the meticulous taking of evidence, making of findings of facts and law, and crafting of his decision. It was hand tailored to go MUCH further, and that now appears at least significantly squandered.

That analysis of the panel decision in Perry still stands. The bigger problem is that many experts on this issue have been putting their eggs in the basket of the DOMA litigations. And the problem with that is that the biggest of the DOMA cases just got decided in the 1st Circuit last week, and it too is grounded on Romer and is painfully narrow and depressing as to hope for full extension of protected status to sexual orientation by individuals.

As Reuters explains:

“The federalism aspect of the decision makes it a stronger case to bring some conservatives along,” said Paul Smith, a lawyer for the same-sex couples.

The Supreme Court has become increasingly concerned with states’ rights over the past 10 years, striking down numerous federal laws that intrude on state authority, said New York Law School professor Arthur Leonard. The conservative justices have tended to defend traditional areas of state control. Justice Antonin Scalia, for example, criticized the majority decision in Romer for creating a new level of equal protection for gays and lesbians, but he based his argument on a defense of states’ rights.

The DOMA litigation is clearly presented as a battle between federal and state powers. The plaintiffs only challenged the law’s central provision that denies federal economic benefits to married same-sex couples. They left alone the part of the law that says a state doesn’t have to recognize same-sex marriages performed in other states.

While the focus on states’ rights could lead the Supreme Court to strike down DOMA, it could also make it more difficult for gay rights advocates to achieve their ultimate goal: making same-sex marriage a federal constitutional right.

The focus on federalism could also undercut arguments against state laws like Proposition 8 that ban same-sex marriage. Schowengerdt, the lawyer from the Alliance Defense Fund who is currently defending gay marriage bans in Hawaii and Oklahoma, said he plans to cite the recent Massachusetts ruling to support his position that the definition of marriage should be left up to the states.

He pointed out that 31 states had passed constitutional amendments defining marriage as between a man and a woman. “At the end of the day, federalism helps proponents of traditional marriage,” he said.

By having both Perry and the 1st Circuit DOMA rely on the Romer paradigm, the main thrust of LGBT litigation is now set up under a states rights analysis as opposed to full equal protection status across the board and uniformly nationwide.

While many of the experts, pundits and lay people closely watching these cases may be cheering today, it seems a tad hollow. This is not the posture that Vaughn Walker worked so hard to put in place, the posture that the affected citizens deserve.

[The absolutely incredible graphic, perfect for the significance and emotion of the Perry Prop 8 case, and the decision to grant marriage equality to all citizens without bias or discrimination, is by Mirko Ilić. Please visit Mirko and check out his stock of work.]

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Dallas Trash Talk

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That’s right mofo’s, we gots us a full on food fight here on the Emptywheel blog.

What’s it all about? Well, when you get down to it, it is ALL about Dallas.

No, I am not talking about J.R. Ewing (and who shot him – psssst it was Bing Crosby’s daughter), Bobby Ewing, Sue Ellen, Pamela, Christopher or John Ross. No, I am not talking about that Dallas. Although, I would like to note, the New Dallas premiers on TNT channel on June 13th and, all things considered, it looks very appropriately oily and greasy just like the original Dallas. And, I have to confess, I loved the original Dallas. In fact, my roommates and I had the most awesome tux & tails “Who Shot JR” party you can imagine when I was in graduate school in Boulder. It was a certified event in the Boulder social scene of the day. The trailer for the New Dallas is to the right. Get used to it, there is likely to be more of this!

But that is NOT the Dallas I am talking about here today. Oh no. No, the Dallas I am talking about here and today is Dallas Escobedo. Most awesome champion pitcher for the Arizona State University Lady Sun Devils.

That would be the Defending NCAA Champion ASU Sun Devils. Thank you very much.

And, as luck would have it, Dallas and the Devils are back in the hunt for the 2012 College Softball World Series. Tonight they play their first 2012 Super Regional game against Louisiana Lafayette at – oh wait – that would at Alberta B. Farrington Stadium; conveniently the home of the Lady Sun Devils!

So what about the Emptywheel blog food fight?? Oh, well, you see we now have this SEC interloper guy, Jim White. Honestly, it was distressing enough that I had to share time with an itinerant Big-10, Big-10.2, Big-10.2.5 – hell whatever – woman, but now the Gators are representing?? Well, I just don’t know anymore.

If you are from Alabama, do NOT troll this post! You see, the Crimson Tide (another criminal SEC team!) is, as we speak, playing the Michigan Wolverweenies in another Super-Regional. This is REALLY painful for me. Go Big Blue!

This post will keep reappearing on top of things so long as the Real Dallas, Escobedo edition, and the Lady Devils keep winning. ASU Baybeeee!

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Mark Brewer and Steve Pestka: Taking the “Democratic” Out of the Democratic Party

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As MLive reports, the state Chair of MI’s Democratic Party, Mark Brewer, has asked the Democratic primary candidates in my congressional district to take the democracy out of the primary.

He doesn’t call it that, mind you. His DoubleSpeak for asking Steve Pestka and Trevor Thomas not to talk about each other’s record is “Clean and Fair Campaign Agreement.”

I write today to ask you both to put [commitments to focus on Justin Amash] in writing by signing and abiding by the enclosed “Clean and Fair Democratic Primary Campaign Agreement.”

One of the clauses in the proposed agreement is:

To avoid attacks on each other’s records and positions by any means, including the media, campaign literature, advertisements, phone calls, mailings, e-mail and speaking engagements. [my emphasis]

Apparently, the guy running MI’s Democratic Party thinks it’s “fair” to voters to gag all discussion of candidates’ past records. And Steve Pestka, who said he will sign this gag order, agrees!

A couple of notes about this proposed gag order.

This is yet another attempt (at least the fifth I have heard or witnessed over the course of this primary) by leaders in the Democratic Party–the same one running against the GOP’s war on women–to silence all discussion of Democrats’ own attacks on women’s autonomy. As far as I’m aware, the only part of Pestka’s record that Thomas has addressed (thus far) was his anti-choice votes while serving in the MI House (indeed, MLive suggests that’s what this is about, as well). Pestka’s campaign, meanwhile, just wanders around saying Thomas has no record (ignoring, of course, Thomas’ role in getting DADT repealed; apparently that doesn’t count).

So this is not about gagging discussion on a policy that Justin Amash would use to bash the Democrat, cause he’s rabidly anti-choice too. Rather, it is about preventing voters from learning what Steve Pestka did the last time voters entrusted him to represent their interests. Mark Brewer’s idea of a “fair” primary is to prevent women from being reminded that Pestka’s record includes a history of legislating against women’s autonomy.

Apparently, we girls aren’t allowed to hold him accountable for voting against our interests.

Furthermore, Brewer built this gag order to be asymmetrical. He didn’t ask Pestka and Thomas to avoid talking about their own records–meaning Pestka would be gagged from mentioning he served in the House and Thomas would be gagged from talking about his role in a key civil rights victory. Rather, this gag order would allow Pestka to continue sending out lit pointing to his time in the State House as one thing that qualifies him to serve in Congress, without allowing Thomas to point out some of the terrible votes he made while there.

If you’re going to gag discussion about past records, Chairman Brewer, you’ve got to gag discussion on both sides!

There’s one more really disgusting aspect to this gag order. Brewer attempts to gag not just the campaign itself, but both his reference to “the media” in the passage above and in the scope of those the candidates would have to gag if they agreed to this–“campaign teams, including staff, surrogates, advisors, consultants, vendors and volunteers”–people far beyond Thomas himself. I’m not formally part of Thomas’ campaign at all (I have donated to his campaign, though), but I am “the media.” I also happen to be a 3rd CD voter who finds the paternalistic way the Democrats have pushed Pestka–“shut up girls! don’t talk about his anti-choice record!”–to be profoundly anti-woman. Is Chairman Brewer really proposing that Thomas be fined every time I speak, as a 3rd CD voter and registered Democrat, for the importance of a candidate who fully supports women’s rights?

That’s what the Democratic Party has come to?

Who knows. Maybe there’s a bright side to this. Pestka’s campaign loves to attack Thomas–who grew up, went to college, and worked in the area, then returned home after succeeding in DC–as a “carpetbagger.” Since this gag order also imposes a fine for personal attacks, I assume Pestka’s campaign will start doling out $1000 to a charity of Thomas’ choice every time they continue to make such stupid attacks.

Maybe Thomas should name Planned Parenthood as the charity Pestka will have to donate to?

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C Street Takes Care of The Family’s Sex Problems, Again

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Roll Call reports that former Representative [redacted] son, [redacted], got hired as Tom Coburn’s District Staff Assistant. That, in spite of the younger [redacted] conviction on misdemeanor charges of criminal solicitation and sexual harassment.

Sen. Tom Coburn’s decision to hire a former Member’s son who has a criminal record illustrates the latitude lawmakers have to hire as they see fit — and the value of personal connections in a world where information about wrongdoing can be found at a moment’s notice.

[redacted]

Credit where it’s due, the Hill actually makes the connection between Coburn, the [redacted], the Christian cabal “The Family’s” brownstone known as C Street where they shacked up together, and the involvement of both in covering up John Ensign’s extramarital affair [redacted].

While it doesn’t come out and say it directly, it comes as close as possible in a Hill rag to stating the obvious: [redacted] only got this job because his daddy belongs to the same cabal as Coburn (and because he’s white and connected, because if he weren’t, even The Family might not have been able to help him).

Of course, Coburn is also the guy who once sterilized at least one woman without her consent because he thought she had had too many babies already. Vagina monsters, you see, aren’t entitled to the same kind of second chances as male members of The Family.

Update: Fixed mis-identification of original report to Roll Call thanks to Peterr.

Update, 12/3/20: Names that have legally been expunged have been redacted.

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Zimmerman: Anatomy Of A Deficient Probable Cause Affidavit

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Now that the dust has settled from the decision in the Zimmerman/Martin case not to proceed by grand jury by the Florida Special Prosecutor Angela Corey, and the decision to file a single count of second degree murder, I want to address a couple of critical topics in the case. First is the fact that there are serious questions as to the sufficiency of the probable cause affidavit that currently constitutes not just the core, but pretty much the entire basis for the state’s case.That will be the subject of the instant post. Second, will be a discussion of the mechanics of Florida’s procedure for implementing its “Stand Your Ground” law and a discussion of other pending procedural aspects of the case, and that will be covered in a followup post.

A probable cause affidavit is exactly what it sounds like, a sworn affidavit delineating probable cause in a criminal case – whether it be to search a place, arrest a person or charge a crime. Whatever the particular purpose, the affidavit must delineate the factual basis to support the specific legal action sought to be pursued by the state. And the general principle common to all such affidavits, whether for search, arrest or charging, is that it must “stand on its own” based on “what is within its four corners”. In lay terms, that means there must not only be sufficient information to cover all requisite elements necessary for the action, all such support must be actually in the affidavit – not in some extraneous place or with some extraneous source.

The Zimmerman affidavit is, at least by my analysis, wholly deficient for its purpose intended, i.e. to support the criminal charge under Florida law of second degree murder against Zimmerman.

We will start with a look at what useful, and useable, information is actually contained in the affidavit. Here is a complete copy of the full three page affidavit filed by the State of Florida in the Zimmerman case. Other that captions, signatures and certifications, all pertinent information is contained in twelve text paragraphs on the first two pages. Let’s look at them:

Paragraphs 1-3: The first three paragraphs give the names of the two investigators that are serving as the affiants for the affidavit and gives their background experience that qualifies them to do so. The investigators, O’Steen and Gilbreath both appear to be very experienced and appropriate for the task. No problems here.

Paragraph 4: The fourth paragraph details the types of material, evidence and sources the affiants relies on. Pretty standard stuff, again no problems here. (Interesting that the state appears to have a lot of “sworn statements” – even from cops, which is kind of unusual at this stage. Cops rarely give sworn evidence if they don’t have to, and prosecutors rarely want to lock them in this early. There may have been an internal affairs type of investigation that explains this, we shall see).

Paragraph 5: The fifth paragraph is the first factually substantive material. It details that Martin was living in the gated community at the time of the event, was returning from the store (with the infamous Skittles) and was unarmed and not engaged in any criminal activity. Then, however, the affidavit blurts out a critical, but completely unexplained and unsupported claim, namely that Zimmerman was “profiling” Martin. It does NOT allege that any such “profiling” had a racial animus or was, in any sense, illegal or improper. This is important because, while it is a rhetorically charged term, profiling is completely legal, whether for police or average citizens, so long as it not based on an improper invidious animus like race, religion, sex, etc. So, with NO allegation of improper animus here, and there is not, the profiling alleged is completely and unequivocally legal. Further, there is absolutely no specific attribution as to where this allegation came from – did Zimmerman admit it, if not what was the basis for the conclusion by the affiants? We have NO idea whatsoever, it is just a raw conclusory statement of absolutely no value whatsoever in its naked state. In short, there is nothing in Paragraph 5 that does anything to actually provide probable cause for the crime charged.

Paragraph Six: Paragraph six is much like paragraph five, except it details the intro to Zimmerman, where paragraph five did so for Martin. Zimmerman also lived in the gated community. It relates Zimmerman was “driving his vehicle” (we have no idea from where or to here) and “assumed Martin was a criminal”. Well that sounds bad right? Well, not really. First off, again, there is absolutely NO way of knowing where this information came from – did it come from Zimmerman? Was it culled from the 911 tape? Did a psychic conjure it up? We don’t know. Remember, it is seminal affidavit law that a;; pertinent facts must be supported and attributed “within the four corners of the document”. There is also a statement the 911 dispatcher told Zimmerman an officer was “on the way”. Again, there is absolutely nothing in Paragraph 6 that does anything to actually provide probable cause for the crime charged.

Paragraph 7: Paragraph seven is yet more of the same. It describes that Zimmerman believed there had been unsolved break-ins in the neighborhood, and “fucking punks” and “assholes” “always get away”. Credit where due, we finally have a specific attribution point for the statements by the affiants, it is specifically stated to be from the recorded 911 call. See, the state and affiants are capable of proper attribution when they want to. Small victory. The problem is, there is still NO improper or illegal activity described. None. So far, Zimmerman is judgmental and concerned about his neighborhood, but there is not one scintilla of illegal conduct.

Paragraph 8: The eighth paragraph starts out with a description of a call Martin was on supposedly at the time he was being observed and followed by Zimmerman. But, again, there is not squat for specificity or particularity, the linchpins of a proper affidavit. We are not old who the person on the phone with Martin is, what the exact time of the call, and length of call, was, and we are not told how that information is known. Was that person interviewed by cops? Did she give a sworn statement? Did these investigators talk to her themselves, or was it some other officer and, if so, who? Hearsay, and even double or triple hearsay is acceptable in an affidavit, but the path and facts establishing it must be delineated. Here it is not. Then paragraph 8 goes off the Read more →

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What Zimmerman’s Charge Means (Or Doesn’t)

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Well, okay, the press conference by Angela Corey is over. Let us be clear, it was the performance of a politician and, not necessarily that of a grounded and by the book prosecutor. Seriously.

First off, Ms. Corey talked in repeated and continued platitudes and never, at any point, identified what the exact charge she was prosecuting Zimmerman under, nor her basis for doing so.

This is important to me, and the discussion herein at this blog, because 1) we are intelligent and actually care about such specifics, but 2) It is really important in a publicly and hotly contested case such as the Zimmerman shooting homicide of Trayvon Martin.

I stand by everything said in my preliminary post today as to why the path, via information filed and prelim process is not only appropriate, but absolutely smart. That still stands.

The only issue, at this point, is the actual charging of the criminal defendant, in this case George Zimmerman. Here is the SOLE charge filed by Angela Corey against George Zimmerman:

COUNT 1: IN THE COUNTY OF SEMINOLE, STATE OF FLORIDA, On February 26, 2012, GEORGE ZIMMERMAN, did unlawfully and by an act imminently dangerous to another, and evincing a depraved mind regardless of human life, although without any premeditated design to effect the death of any particular individual, kill TRAYVON MARTIN, a human being under the age of eighteen, by shooting the said victim, and during the commission of the aforementioned Second Degree Murder, the said GEORGE ZIMMERMAN did carry, display, use, threaten to use or attempt to use or attempt to use a firearm and did actually possess and discharge a firearm and as a result of the discharge, death or great bodily harm was inflicted upon any person, contrary to the provisions of Sections 782.04(2), 775.08(1) and 775.087(2), Florida Statutes.

That would be 2nd degree murder, as charged. Under what actual section of the pertinent Florida statute are we talking? Well, 782.04(2), 775.08(1) and 775.087(2). does that really tell you where and how the state is proceeding? No. Not to my eye, it does not. Take a look, if you can see the specific, definable, path to charge, then you are a better man and lawyer than I. If you can see, maybe, potential, possible, applicability then join the club. But, that is, of course, not the standard.

Here, however, is the manslaughter provision I proffered in the earlier post. I now see legal gadabout Mark Geragos on CNN saying the 2nd degree statute charged may be actually easier to prove up than a manslaughter charge. He is is fucking crazy loopy off his rocker if he really believes that bleating bullshit.

Seriously, I cannot speak as an active criminal prosecutor, but as a defense attorney, bring this on. If my client has to be charged, I would rather he be over charged, especially nebulously and with all the justification defenses available under Florida law, as either described and/or linked, in the earlier post.

So, to sum up, I would say it is a bit batty to charge the HIGHEST POSSIBLE CHARGE IMAGINABLE, and ONLY THE HIGHEST CHARGE IMAGINABLE, with no lesser included backups. But, hey, what me worry Angela Corey?

Yes, I am perplexed at this. Completely. Let the college of internet knowledge school us on why this is wrong.

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Why Florida Is Charging Zimmerman Directly Instead Of By Grand Jury

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As you may have heard by now, the Washington Post has broken the news that Florida officials, to wit Special Prosecutor Angela Corey, will charge George Zimmerman in the Trayvon Martin killing. The charging is expected late this afternoon, but could be as late as tomorrow. Here is the key information from the Washington Post report:

Florida special prosecutor Angela Corey plans to announce as early as Wednesday afternoon that she is charging neighborhood watch volunteer George Zimmerman in the shooting of Trayvon Martin, according to a law enforcement official close to the investigation.

It was not immediately clear what charge Zimmerman will face.

Both the AP and CBS News have confirmed that Zimmerman will be charged and the AP is reporting the news conference announcing the charge will be at 6:00 pm EST today. Further, the Miami Herald is reporting there will be one single charge filed in the matter, although they do not report what the charge is.

Now, here is why this is occurring, and it s exactly what I predicted from the moment Special Prosecutor Corey’s office let it be known that she, on behalf of the state, would not be availing herself of the grand jury process, an announcement made Monday.

The bottom line is this: a direct information/complaint is a cleaner, and safer, way for Corey to proceed.

The facts are muddled, and the evidence set for the case was compromised, by incompetent investigation by police from the outset. There is, at this point, no question (and, really, there may never have been) any doubt but that Zimmerman had at least at a nominal minimum, an allegeable self defense claim. That does not mean it is valid, but it does mean that it is legally cognizable.

With the screwed up and compromised evidence status, combined with all the public attention and attendant lobbying of law and factual interpretation, it would be brutal for a prosecutor to take the matter to a grand jury. The first thing a good defense lawyer would do upon knowledge of a pending grand jury presentation is salt the prosecutor with every fact and argument humanly imaginable in his client’s behalf – in writing – and demand that it be presented to the grand jury along with the state’s case. You do that on a high profile case like this with a sloppily worded affirmative defense like Florida’s “Stand Your Ground” law, and there is every reason to believe a grand jury would decline.

But, the odds are far different if a prosecutor, in this case Corey, takes the path of filing an direct information and foregoing the grand jury. A direct information, with a duly issued arrest warrant from the court of competent jurisdiction, gives the case the instant imprimatur of legitimacy, and guarantees that it will be determined by an experienced magistrate, and not lay citizens on a grand jury. This is exactly why I argued to Jeff Toobin Monday night that it was a superior path.

Now, a little further depth on what is at play, and for that I will turn to an excellent, and correct, analysis by Reuters on this subject:

To mix metaphors, Stand Your Ground is no Slam Dunk.

The controversial 2005 Florida law grants immunity to people who use deadly force in self defense. In the days since George Zimmerman shot and killed 17-year old Trayvon Martin, critics and supporters both seem to have assumed that if Zimmerman is charged, he could easily seek and win immunity from prosecution under Stand Your Ground.

But don’t be so sure. Interviews with nearly a dozen veteran defense lawyers who have experience litigating Stand Your Ground cases suggest winning immunity could be quite difficult.

“Judges do not readily grant these (immunity) motions because they know they can pass it on to the jury,” said Carey Haughwout, the public defender for Palm Beach County.

So far, Zimmerman has not charged with any wrongdoing. A special prosecutor, Angela Corey, is still investigating the incendiary case, which carries heavy racial overtones and has stirred a national outcry.

But if charges are filed and Zimmerman does choose to seek immunity, he will face challenges at almost every stage, lawyers said.

The first hurdle will be a special evidentiary hearing in front of a judge, where Zimmerman will have the opportunity to argue that he deserves immunity. But to convince the judge, Zimmerman will have to present a “preponderance of evidence” that he acted in self defense, which under the law means he has to show he had “reasonable belief” that such force was necessary. That is a high bar, and difficult to prove, criminal defense attorneys said.

In cases where the facts are in dispute — and even if they don’t seem to be — the judge is likely to deny the Stand Your Ground immunity motion, said Ralph Behr, a Florida criminal defense attorney who has filed eight motions for immunity, all of which have been denied. More typically, a judge will choose to have the case go to trial, where the defendant must take his or her chance with a jury, just like other criminal defendants, he said.

“Most judges, I think, are comfortable letting the adverserial system play out before a jury rather than make decisions themselves,” said Behr.

Bingo! I literally could not have said it better myself. Hats off to Reuters for some fine analysis. See, filing the charge via information guarantees it gets to a court. The first step is almost certainly (and Florida criminal code is a bit, um, confusing, but seems consistent with the norm) that Zimmerman would be given an initial appearance within 48 hours of his actual physical arrest, and would be set for a preliminary hearing within ten days of the date of his initial appearance (unless he waives said time limit and requests an extension). The magistrate is going to want no part of being the final arbiter, and will want to pass this on to a jury trial level court. And, as the Reuters analysis explains, things actually favor the case getting to the jury. This is almost surely why the case is proceeding as it is. And, no, it is not, as Think Progress blithely stated, because Angela Corey definitively decided “Stand Your Ground” is inapplicable; it is about making a further court decide that issue as Reuters explained.

One last thing, in addition to the above discussion, it simply is not, and never has been, that the infamous Florida “Stand Your Ground” law is the controlling boogeyman that nearly every commentator has made it out to be. David Kopel, at Volokh Conspiracy, says:

Media coverage of Florida’s self-defense laws in recent weeks has often been very inaccurate. While some persons, particularly from the gun prohibition lobbies, have claimed that the Martin/Zimmerman case shows the danger of Florida’s “Stand your ground” law, that law is legally irrelevant to case. So let’s take a look at what the Florida laws actually say.

I do not want to expend the space to cover all that David did again here, but do go read his lengthy piece on the full nature of Florida homicide and self defense law, it is very good. While I do not agree with every thing Kopel says it is, on the whole, spot on as to how Zimmerman/Martin is really a normal self defense/justification case. And so it is.

Lastly, a prediction. As related above, it appears there will be a single count charged in Corey’s information against Zimmerman. That is certainly not unusual nor distressing in the least if you are experienced in such matters. Actually, it is predictable. I predict that charge will be a single count of manslaughter under Florida Revised Statute 782.07 and aggravated under subsection (3) because Trayvon Martin was under the age of 18 years old.

So, that is why we are where we are, and my predictions for where this case is going, and why.

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Poll: Do Men Realize Birth Control Is Rarely Just for “Female Employees”?

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Greg Sargent tweeted the results of this CBS/NYT poll, showing that 37% of those polled believe the whole birth control debate is about religious freedom. While Sargent thinks 37% is a small number, given that it means that maybe a quarter of people polled (given that almost 100% of sexually active women have used birth control and most of them have used it because they were sleeping with men) both believe that birth control is a religious issue and have relied on birth control, I find it rather high.

 

 

But look at how the questions were asked:

At issue here is not just health insurance providing birth control for female employees. It is also about providing coverage for vasectomies (which accounts for 10% of birth control use). And providing coverage for the female spouses of male employees most of whom, presumably, are using that birth control because they are sleeping with their spouse.

There’s a lot of men having sex without babies that this health coverage enables.

And while I’ll grant you that the lack of availability of birth control disproportionately affects women (particularly with imperfect enforcement of child support and still pervasive gender roles about nurturing children), this is also about the ability of couples, together, to choose to have families of a size appropriate to their lifestyle and income.

I get that this is about women’s ability to choose autonomy. But it’s also about men’s ability to fuck and fuck and fuck. Somehow that last bit never gets polled.

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MI’s 3rd CD: “West Michigan Values” of Exclusion, or American Values of Equality and Justice for All?

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I was disappointed with Steve Pestka’s announcement to run for the 3rd CD. While he promised jobs, he also repeated the “West Michigan Values” phrase a top Kent County Dem used when telling me and others to shut up. And he suggested he was running against extremists.

“I will fight for jobs and for West Michigan values, instead of for extreme political views from either side that lead us nowhere.”

Really, “extreme political views”? Is Pestka suggesting that Trevor Thomas, who worked for and was endorsed by MI’s moderate former Governor, Jennifer Granholm, is extreme?

Does Pestka think that working in bipartisan fashion to help men and women who have served their country win equal rights is “extreme”? Does he think fighting to help Eric Alva, who lost a leg in the opening hours of the Iraq War, be treated equally by the government is extreme? Here’s what Alva says in an endorsement of Trevor today:

My name is Eric Alva and I was the first American wounded in the war in Iraq. On March 21, 2003, just three hours into the invasion, I triggered a landmine.

I was thrown through the air, landing 15 feet away. As my fellow Marines were cutting away my uniform, I wondered why they weren’t removing my right boot. I would learn later that my leg was already gone. I served my country for 13 years as a Marine receiving the Purple Heart for my service.

I met Trevor Thomas while working with a coalition of bipartisan forces to repeal the discriminatory “Don’t Ask, Don’t Tell” law. Trevor was a key voice and strategist in repealing D.A.D.T. He helped me tell my story on World News Tonight with Diane Sawyer.

Trevor worked tireless on behalf of thousands of members of the military to create a more just and equal world.

The suggestion that someone who has fought for a “more just and equal world” is extreme and the invocation of “West Michigan values” precisely when people try to raise Steve Pestka’s past efforts to roll back women’s autonomy concerns me.

Make a case why you’re the better Democrat to represent the working men and women of Grand Rapids. Explain how you’ll help create jobs.

But I always thought Democrats fought for the American values of equality and justice. Folks keep telling me I haven’t lived in Grand Rapids long enough to know about West Michigan values. But if those values say fighting for equality for women and our service members is extreme, then I prefer good old-fashioned American values.

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Did Catholics Pay to Snip Roy Blunt?

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I confess, since I wrote this post I’ve been obsessing about Roy Blunt’s balls.

It’s not just that I believe every supporter of the Amendment that bears Blunt’s name should be willing to tell taxpayers whether they’ve used birth control to limit the size of their families.

But because I think there’s a distinct possibility that Blunt had a bunch of Catholics pay to snip his man-parts so he wouldn’t have any more kids.

That, of course, would be precisely what his Amendment claims to want to prevent: forcing people of faith to pay for medical care–birth control–that violates their conscience (or that of their Bishops).

Blunt was born on January 10, 1950. He married Roseann Ray in 1967 (she appears to have been, like him, 17 at the time). Matt, their oldest child, was born in November 1970, the year Blunt graduated from college (though he would immediately get a Masters, perhaps because of the draft). They had a second child, Amy, around 1973. Andrew, their youngest, was born in 1976. Blunt and Roseann were married another 26 years or so after Andrew was born, but never had another child.

In 1972, Blunt had already started public service, working as Greene County Clerk. In 1984, Blunt won election as MO’s secretary of state. From 1993 to 1996, Blunt served as President of Southwest Baptist University–his only significant non-government job. In 1997, as he was turning 37 47, he started serving in Congress, until last year when he moved to the Senate. Thus, for almost his entire life, Blunt worked for taxpayers, whether for Greene County, the state of MO, or the federal government. For the majority of Blunt’s career, taxpayers have paid for his healthcare. And since his now ex-wife Roseann doesn’t get benefits from the foundation she works at, it is likely he provided healthcare for both of them.

If that’s right, then for all but 4 years of his professional life, taxpayers of some sort have paid for his healthcare, including–if it was paid for by insurance–whatever means he and his wife of 35 years used to stop having children after Andrew was born. And while Greene County, in the Ozarks, is Bible-belt Protestant, at the state level, almost 20% of the population of MO is Catholic. An even higher percentage is Catholic at the national level. For 60% of his working life, roughly 20% of the people paying his salary and benefits–his “employer” if you will–were Catholic.

Which brings us to snipping Roy Blunt.

There are any number of ways Blunt and his first wife, Roseann, might have stopped having kids at 3: medical complications, abstinence, the pill, condoms, or sterilization. Several of those would violate the letter of Catholic doctrine.

But look what happened when, in 2002, Blunt ditched his high school sweetheart, Roseann, and married his mistress, Altria lobbyist Abigal Perlman. They adopted, an 18-month old Russian boy whose adoption went through in April 2006.

Again, there are multiple possible explanations for their choice to adopt rather than have a biological child together. By the time they married on October 18, 2003, Blunt was 53, the point in a man’s life where he starts shooting blanks. Perlman was 41, also the tail end of safe child-bearing age for a woman. It’s possible they tried to conceive and failed to do so immediately, so decided to adopt. It’s possible Perlman didn’t want to have a pregnancy interrupt her high power lobbying career. It’s possible they didn’t want to overpopulate the world.

Or, it’s possible Blunt got snipped all those years ago when he stopped having biological children with Roseann.

Again, all of this should be none of our business. But Blunt made it our business when he insisted that no Catholics should have to pay for birth control that violates the mandate–but not the practice–of their religion.

For over half of his working life, 20% of Blunt’s employers were Catholics. And yet he appears to have had no compunctions–no “conscience clause,” if you will–about making them pay for his birth control.

Update: Thanks to steve w for correcting my math on Blunt’s age when he got to Congress.

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