Reggie Walton Unleashes the Rocket’s Red Glare

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graphic by mopupduty.com

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Well well well. who couldda knowd?? Acute prosecutorial foul play has ended the big Roger Clemens perjury trial at it’s gestation. From ESPN:

The judge presiding over Roger Clemens’ perjury trial declared a mistrial over inadmissible evidence shown to jurors.

U.S. District Judge Reggie Walton said Clemens could not be assured a fair trial after prosecutors showed jurors evidence against his orders in the second day of testimony.

He will hear a motion on whether a new trial would be considered double jeopardy.

Whooo boy, Judge Walton must have been a little upset. Why yes, yes, he was:

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“I don’t see how I un-ring the bell,” he said

Walton interrupted the prosecution’s playing of a video from Clemens’ 2008 testimony before Congress and had the jury removed from the courtroom. Clemens is accused of lying during that testimony when he said he never used performance-enhancing drugs during his 24-season career in the major leagues.

One of the chief pieces of evidence against Clemens is testimony from his former teammate and close friend, Andy Pettitte, who says Clemens told him in 1999 or 2000 that he used human growth hormone. Clemens has said that Pettitte misheard him. Pettitte also says he told his wife, Laura, about the conversation the same day it happened.

Prosecutors had wanted to call Laura Pettitte as a witness to back up her husband’s account, but Walton had said he wasn’t inclined to have her testify since she didn’t speak directly to Clemens.

Walton was angered that in the video prosecutors showed the jury, Rep. Elijah Cummings, D-Md., referred to Pettitte’s conversation with his wife.

“I think that a first-year law student would know that you can’t bolster the credibility of one witness with clearly inadmissible evidence,” Walton said.

Well, yes, Reggie Walton is exactly right. It was not only an inappropriate attempt at backdoor admission of what was, at the time, hearsay but, much, much, more importantly flew directly in the face of a direct and specific previous order of the court on this EXACT issue. You just do not do that, and if you do you cannot whine when the court spanks your ass. You got said ass whuppin the old fashioned way, you earned it.

So, now the germane question is where do we go from here; i.e. what about a new trial. Well, that depends on a fair amount of pretty complicated things that are not going to be self evident to those not more than intimately experienced in the nuances of technical trial law are going to understand. I will get into that in detail, and discuss the legal implications and situation, when the pleadings are filed. Judge Walton has scheduled a Sept. 2 hearing on whether to hold a new trial, or dismiss the case permanently due to double jeopardy. clemens’ defense team will have until July 29 to file the motion to dismiss with prejudice and the prosecution has until Aug. 2 to respond.

A lot of judges would have tried to paper over this bogosity by the prosecution. Reggie Walton is PISSED. He may well say they are done based on double jeopardy. Those are gonna be fun briefs, and a very interesting oral argument.

One further thing, despite the incredibly short tenure of this jury trial – literally really in the first day of evidentiary presentation – today’s antics were NOT the first instance of prosecutorial misconduct. Oh no, the government was acting maliciously and unethically from the get go in the opening statements.

[Judge Walton] said it was the second time that prosecutors had gone against his orders — the other being an incident that happened during opening arguments Wednesday when assistant U.S. attorney Steven Durham said that Pettite and two other of Clemens’ New York teammates, Chuck Knoblauch and Mike Stanton, had used human growth hormone.

Walton said in pre-trial hearings that such testimony could lead jurors to consider Clemens guilty by association. Clemens’ defense attorney objected when Durham made the statement and Walton told jurors to disregard Durham’s comments about other players.

Yes, boy howdy, that is precisely right.

I think that the Laura Pettite bit, coupled with the improper attempt at prohibited guilt by association in the openings makes a fast pattern to malicious prosecution. If Reggie wants, he can dismiss and ground it upon both mistrial and sanction for malicious.

I’ve been telling people for years that it was NOT just former IRS goon come FDA stoolie agent Jeff Novitsky (although it all starts with him) that was malfeasant in the BALCO cases, including the Mitchell report kerfuffle, it was the AUSAs too.

This mendaciousness is just bogus and deplorable. Congratulations to Judge Reggie Walton for fingering it for what it is. Now dismiss this bunk forever please.

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New York’s Enlightenment & Some Thoughts On Perry Prop8 Case

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Liberty & Justice by Mirko Ilic

New York gets it done for marriage equality:

Lawmakers voted late Friday to legalize same-sex marriage, making New York the largest state where gay and lesbian couples will be able to wed and giving the national gay-rights movement new momentum from the state where it was born.

The marriage bill, whose fate was uncertain until moments before the vote, was approved 33 to 29 in a packed but hushed Senate chamber. Four members of the Republican majority joined all but one Democrat in the Senate in supporting the measure after an intense and emotional campaign aimed at the handful of lawmakers wrestling with a decision that divided their friends, their constituents and sometimes their own homes.

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Senate approval was the final hurdle for the same-sex marriage legislation, which was approved last week by the Assembly. Gov. Andrew M. Cuomo signed the measure at 11:55 p.m., and the law will go into effect in 30 days, meaning that same-sex couples could begin marrying in New York by late July.

Outstanding. A friend in New York told me this was going to happen and that it would be done late and on Friday night, because that is how monumental and controversial legislation gets done in Albany historically. And that is exactly how it came down. You can almost feel the awesomeness of New York all the way out here in the desert.

But I want to touch on the bigger picture and what the enlightened New York action means to the push for marriage equality for all across the nation. In short, this is Read more →

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Where I Walk My Dog

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I actually wasn’t going to post this video. I haven’t lived in Grand Rapids all that long (so it’s really not my place to criticize this video), but the video misses some of the real funkiness of the art and buildings even in the streets that were filmed.

But it’s getting some play on other blogs and, well, it does show some of the streets and parks where I walk my dog, so I felt obliged.

So here’s the story: this video is meant as a snub to Newsweek, which back in January named Grand Rapids (with Flint and Detroit) as one of Michigan’s three top-ten dyingest cities in the country. So now Newsweek, seeing how a bunch of Grand Rapidians will parade the streets to prove Newsweek wrong, has sheepishly apologized.

To the Grand Rapids crowd:First off, we LOVEyour YouTube LipDub. We’re big fans, and are inspired by your love of the city you call home.

But so you know what was up with the list you’re responding to, we want you to know it was done by a website called mainstreet.com–not by Newsweek (it was unfortunately picked up on the Newsweek web site as part of a content sharing deal)–and it uses a methodology that our current editorial team doesn’t endorse and wouldn’t have employed. It certainly doesn’t reflect our view of Grand Rapids.

They should have just asked my dog. He loves Grand Rapids. He’s very urbane and so loves to strut through all these city streets, plus he’s figured out a place (that appears in the video) where he can jump in the river when it’s hot.

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Happy Easter

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Hi folks, Happy Easter! It has been a pretty frustrating week on a lot of the fronts we follow here. There are far too many such weeks. Even the one piece of positive news, the reinstating of the charges against the Blackwater Nisour Square shooters, was based on a somewhat suspect decision by the DC Circuit Court and still very well may lead to another dismissal of the charges in the District Court because, quite frankly, it is probably appropriate that they be dismissed due to the monkeywrenching by the State Department and their demand for Garrity statements from the individuals involved in the shooting.

But that was the week that was, now it is Easter Sunday and it is time to relax, eat and have some fun, whether it is a religious holiday for you or just a good chance to chill. Marcy and Mr. Wheel have been enjoying the last few days by moving. You know how much fun moving is! As for myself, after an extremely busy week, the bmaz family went driveabout in Southern Arizona. Thought, just for grins, I would share a little of our trip. One of the places we went to was San Xavier del Bac Mission, which is just due south of Tucson.

A National Historic Landmark, San Xavier Mission was founded as a Catholic mission by Father Eusebio Kino in 1692. Construction of the current church began in 1783 and was completed in 1797.

The oldest intact European structure in Arizona, the church’s interior is filled with marvelous original statuary and mural paintings. It is a place where visitors can truly step back in time and enter an authentic 18th Century space.

The church retains its original purpose of ministering to the religious needs of its parishioners.

The current church dates from the late 1700’s, when Southern Arizona was part of New Spain. In 1783, Franciscan missionary Fr. Juan Bautista Velderrain was able to begin contruction on the present structure usin money borrowed from a Sonoran rancher. He hired an architect, Ignacio Gaona, and a large workforce of O’odham to create the present church.

Following Mexican independence in 1821, San Xavier became part of Mexico. The last resident Franciscan of the 19th Century departed in 1837. With the Gadsden Purchase of 1854, the Mission joined the United States. In 1859 San Xavier became part of the Diocese of Santa Fe. In 1866 Tucson became an incipient diocese and regular services were held at the Mission once again. Sisters of St. Joseph of Carondelet opened a school at the Mission in 1872. Franciscan Sisters of Christian Charity now teach at the school and reside in the convent.

Clicking on any of the images will give a full size view. The upper is obviously the outside of the mission, the middle one a view of the inside of the church portion and the final view more of a closeup of the altar area, which is simply ornate beyond description and beautiful. It is guarded by two huge golden lions on each side, although they are a bit hard to see well in the picture. San Xavier is pretty cool and just about the only place like it still standing this completely in what what was referred to in the 1600s and 1700s as New Spain.

The other completely awesome place we went was Kartchner Caverns. Kartchner Caverns State Park is about 50 miles southeast of Tucson, is only about ten miles off of Interstate 10 and is easily accessible. It is one of the most beautiful state park facilities you can imagine. Here is a wonderful history of how the cave came to be a jewel in the state park system in Arizona. One of the key players you will read about is Ken Travous, who was along with us on the tour the bmaz family took Saturday; it was really a special occasion.

In November 1974 two young cavers, Gary Tenen and Randy Tufts, were exploring the limestone hills at the base of the Whetstone Mountains. In the bottom of a sinkhole they found a narrow crack leading into the hillside. Warm, moist air flowed out, signaling the existence of a cave. After several hours of crawling, they entered a pristine cavern.

The formations that decorate caves are called “speleothems.” Usually formations are composed of layers of calcite called travertine deposited by water. The form a speleothem takes is determined by whether the water drips, flows, seeps, condenses, or pools.

Kartchner Caverns is home to:

one of the world’s longest soda straw stalactites: 21 feet 3 inches (Throne Room)

the tallest and most massive column in Arizona, Kubla Khan: 58 feet tall (Throne Room)

the world’s most extensive formation of brushite moonmilk (Big Room)

the first reported occurrence of “turnip” shields (Big Room)

the first cave occurrence of “birdsnest” needle quartz formations

many other unusual formations such as shields, totems, helictites, and rimstone dams.

The complex at Kartchner Caverns features a Discovery Center with museum exhibits, a large gift shop, regional displays, a gorgeous theater, and extensive educational information about the caverns and surrounding landscape. There are also campgrounds, hiking trails, lockers, shaded picnic areas, a deli, an amphitheater, and a hummingbird garden. It is simply an incredible experience, and I highly recommend it for anyone visiting the Southern Arizona area. Seriously cool.

So, the members of the bmaz family are back home now, the Wheels are semi-unpacked in their groovy new digs, and all are ready to eat and have happy hour. The best from all of us to all of you, the greatest readers and commenters in the blogosphere. Enjoy!

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University of Wisconsin’s Response to FOIA Request Emphasizes Importance of Academic Freedom

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The University of Wisconsin issued two documents in response to the request for Professor Bill Cronon’s emails: a message from the Chancellor, and a letter from the General Counsel to WI’s GOP. As the GC letter describes, UW has withheld the following documents, among others.

4.    Personal communications.  The Wisconsin Supreme Court’s decision in Schill, et al. v. Wisconsin Rapids School District, et al., Case No. 2008AP967-AC (July 16, 2010), allows the university to withhold e-mails containing purely personal communications that do not relate to Professor Cronon’s employment as a faculty member or the official conduct of university business, even though they were sent or received on university e-mail and/or computer systems.

5.    Intellectual communications among scholars.  Faculty members like Professor Cronon often use e-mail to develop and share their thoughts with one another.  The confidentiality of such discussions is vital to scholarship and to the mission of this university. Faculty members must be afforded privacy in these exchanges in order to pursue knowledge and develop lines of argument without fear of reprisal for controversial findings and without the premature disclosure of those ideas.  The consequence for our state of making such communications public will be the loss of the most talented and creative faculty who will choose to leave for universities that can guarantee them the privacy and confidentiality that is necessary in academia.  For these reasons, we have concluded that the public interest in intellectual communications among scholars as reflected in Professor Cronon’s e-mails is outweighed by other public interests favoring protection of such communications.

In her message, Chancellor Biddy Martin explained the importance of privacy to academic freedom.

We are also excluding what we consider to be the private email exchanges among scholars that fall within the orbit of academic freedom and all that is entailed by it. Academic freedom is the freedom to pursue knowledge and develop lines of argument without fear of reprisal for controversial findings and without the premature disclosure of those ideas.Scholars and scientists pursue knowledge by way of open intellectual exchange. Without a zone of privacy within which to conduct and protect their work, scholars would not be able to produce new knowledge or make life-enhancing discoveries. Lively, even heated and acrimonious debates over policy, campus and otherwise, as well as more narrowly defined disciplinary matters are essential elements of an intellectual environment and such debates are the very definition of the Wisconsin Idea.

When faculty members use email or any other medium to develop and share their thoughts with one another, they must be able to assume a right to the privacy of those exchanges, barring violations of state law or university policy. Having every exchange of ideas subject to public exposure puts academic freedom in peril and threatens the processes by which knowledge is created. The consequence for our state will be the loss of the most talented and creative faculty who will choose to leave for universities where collegial exchange and the development of ideas can be undertaken without fear of premature exposure or reprisal for unpopular positions.

As I have suggested, emails of Michigan professors FOIAed in similar fashion will almost certainly be exempted under personal exemptions under MI law (I’ve spoken to a bunch of people in MI since I wrote the post, and most people, particularly the lawyers, agree).

Of course, this won’t end it. It’s this concept of freedom that the Republicans are trying to assault, not to mention the autonomy of universities.

But I’m glad UW made such a statement in support of academic freedom.

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“Pro Life” Republicans Trying to Kill 70,000 Children

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At the same time as Republicans are trying to force the IRS to audit abortions (even while forbidding use of the word “uterus”), they are trying to cut Obama’s request for international aid by 16%. Doing so, USAID Rajiv Shah testified yesterday, would kill 70,000 children.

“We estimate, and I believe these are very conservative estimates, that H.R. 1 would lead to 70,000 kids dying,” USAID Administrator Rajiv Shah testified before the House Appropriations State and Foreign Ops subcommittee.

“Of that 70,000, 30,000 would come from malaria control programs that would have to be scaled back specifically. The other 40,000 is broken out as 24,000 would die because of a lack of support for immunizations and other investments and 16,000 would be because of a lack of skilled attendants at birth,” he said.

Check out that last one: the Republicans want to kill 16,000 children by cutting the money for childbirth attendants.

I guess according to the GOP moral code, it’s okay to cause the death of children at childbirth, but letting a woman terminate a pregnancy before that point is a mortal sin.

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Uterus: (Yew-Tur-Us), N, A curse word meaning “not a corporation.”

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Apparently, the children in the GOP party in Florida are offended that a Democratic state Representative uttered the word “uterus” on the House floor:

During last week’s discussion about a bill that would prohibit governments from deducting union dues from a worker’s paycheck, state Rep. Scott Randolph, D-Orlando, used his time during floor debate to argue that Republicans are against regulations — except when it comes to the little guys, or serves their specific interests.

At one point Randolph suggested that his wife “incorporate her uterus” to stop Republicans from pushing measures that would restrict abortions. Republicans, after all, wouldn’t want to further regulate a Florida business.

Apparently the GOP leadership of the House didn’t like the one-liner.

They told Democrats that Randolph is not to discuss body parts on the House floor.

Hell, how do these men propose to regulate women’s uteri (because they’re happy to do that) if they forbid even speaking about them?

Now, I’m not sure if the Republicans made this stink because Randolph’s truth-telling about their fondness for corporations made them uncomfortable, or they simply think men should not listen to their wives (Randolph got the line from his wife).

But I’m guessing I wouldn’t last long in Florida’s House without censure.

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Celebrating 10 Years of the Rights Associated with Marriage

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The Third Way thinks it learned something worthwhile by offering a bunch of apparently straight people who have full civil rights a chance to judge the motivations of those who don’t.

At Third Way, for example, we went beyond traditional polling and conducted a series of innovative and intensive one-on-one interviews — akin to the sort of market research tool used by the Fortune 500. Those interviews proved revelatory and have profound implications for extending marriage to lesbian and gay couples.

We started with a simple question: “What does marriage mean to you?” People spoke of the kinds of things you hear in a wedding ceremony: lifetime commitment, responsibility and fidelity. They called marriage “a big step” and “the most important decision of one’s life.” Nobody talked about legal rights or taxes.

Then we asked them why gay people might want to get married. The overwhelming answer? “I don’t know.” But when we probed deeper, we found that they did have some idea — they had heard the messages from LGBT advocates. They would talk about how gay couples want rights, benefits, equality and fairness. Not surprisingly, that led them to the idea of civil unions, because they told us that if you want legal rights, you should have a legal contract. But that (in their minds) had nothing to do with marriage.

To them, all the talk about rights indicated that gay couples “just don’t get it” — that they couldn’t really understand the true purpose of marriage.

Of course, the problem with their little project is that most people with full civil rights have a difficult time seeing the benefit of those rights because they’ve never had to think about doing without them. The Third Way’s little project would have far more validity if they actually talked to people who had married for the rights it grants couples.

Like me.

You see, described at a very crass level, Mr. EW and I have a Green Card marriage.

That’s not how we thought of it. Rather, after having lived together for about a year or so, we were facing career choices that might have forced one of us to move to a remote city. We knew we wanted to stay together as we embarked upon the career changes we were considering. But we also recognized that that would be far easier to do if we were married, not least because Mr. EW’s visa was at that time tied to his job (and, of course, also because if we moved we could share health benefits). So on a Thursday, we decided to do it. And the following Monday, we got married. Our reception was a night with friends and our brothers at the local Irish pub.

(The picture above isn’t actually from the wedding; it’s from the celebration we had in Sedona the following year. The best picture of from the wedding day–of Mr. EW carrying me over the threshold of the Irish pub–is in some box somewhere.)

And that Monday–the day we swore our lifetime commitment before a judge for the legal benefits such an oath would give us–was 10 years ago today.

Now, don’t get me wrong. There has been plenty of that stuff that straight people who don’t have to think about these rights cite when they think about marriage: commitment, responsibility, fidelity, the whole in sickness and in health bit. And we’ve been pretty schmaltzy in recent days as we think about how great the last decade has been together. But we are also aware–acutely so, when we see friends who for no rational reason aren’t granted the same rights we have enjoyed–how much easier those rights have made it for us to sustain our commitment to each other.

So while it’s very easy for the Third Way to congratulate itself that it got a bunch of people “from Middle America” to complain that gay men and women deprived of civil rights “don’t get it,” it’s a fundamentally dishonest project. The people who “don’t get it” are those who pretend they can separate the institution of marriage from society’s full recognition of that institution, legally, through the rights it conveys.

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Real Reason For US Deficit: GE Greed-$14.2B Profit, $0 Tax

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For all the caterwauling from the right and, stupifyingly, from the Obama Administration and Blue Dog left as well, here is the real reason the United States has the sizable deficit issues it does (well, in addition to the fact we will not tax even rich individuals appropriately either) – our biggest corporations pay no tax. Even when they make unholy amounts of profit. From a sobering article just up at the New York Times:

General Electric, the nation’s largest corporation, had a very good year in 2010.

The company reported worldwide profits of $14.2 billion, and said $5.1 billion of the total came from its operations in the United States.

Its American tax bill? None. In fact, G.E. claimed a tax benefit of $3.2 billion.

That may be hard to fathom for the millions of American business owners and households now preparing their own returns, but low taxes are nothing new for G.E. The company has been cutting the percentage of its American profits paid to the Internal Revenue Service for years, resulting in a far lower rate than at most multinational companies.

Its extraordinary success is based on an aggressive strategy that mixes fierce lobbying for tax breaks and innovative accounting that enables it to concentrate its profits offshore. G.E.’s giant tax department, led by a bespectacled, bow-tied former Treasury official named John Samuels, is often referred to as the world’s best tax law firm. Indeed, the company’s slogan “Imagination at Work” fits this department well. The team includes former officials not just from the Treasury, but also from the I.R.S. and virtually all the tax-writing committees in Congress.

Read the whole article and weep for your and your children’s future. And then take a moment to consider that a competent political class, that was honest about their representation of their constituents and oath to office, would have moved the country away from this reverse Robin Hood dystopia instead of moving ever further down the black hole of elite and corporate greed, robber barons and neo-feudalism.

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The New Obama Policy On Constitutionality Of DOMA & Boies/Olson Reaction

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Liberty & Justice by Mirko Ilic

As Marcy Wheeler pointed out, the Obama Administration this morning made an abrupt and seismic shift in its legal policy and position on DOMA (Defense of Marriage Act). There are two documents of note in this regard, the Attorney General’s press announcement and the detailed letter to speaker John Boehner announcing the change in policy and describing the legal foundation therefore.

Marc Ambinder explains what this means to the two key cases in question:

The decision means the Justice Department will cease to defend two suits brought against the law. The first was a summary judgment issued in Gill et al. v. Office of Personnel Management and Commonwealth of Massachusetts v. United States Department of Health and Human Services last May by the U.S. District Court of Massachusetts. The plaintiffs challenged the constitutionality of the law’s definition of “marriage” as a legal union between a man and a woman.

District Judge Joseph Louis Tauro ruled Section 3 of the act unconstitutional on the grounds that it violated states’ rights to set their own marriage policies and violated the rights of same-sex couples in the states that permitted marriages. But the president felt compelled to defend the law, reasoning that Congress had the ability to overturn it. The Justice Department entered into an appeal process on October 12, 2010. Tauro stayed implementation of his own ruling pending the appeal. The department filed its defense in the U.S. Court of Appeals for the 1st Circuit on January 14.

The second lawsuit, involving the cases of Pedersen v. Office of Personnel Management and Windsor v. United States, would have been appealed in the Appeals Court for the 2nd Circuit, which has no established standard for how to treat laws concerning sexual orientation.

I would like to say this is not only a welcome, but extremely strong position that has been taken by President Obama, Attorney General Holder and the Administration. You can say they are late to the dance, that it is political opportunism because the boat was already sailing, or that it is a “bone to the base” with an election looming. To varying degrees, all would have some validity. However, the bottom Read more →

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