Tuesday, March 19, 2013
Eroding the Fifth Amendment
If attorneys for James E. Holmes, the criminal defendant in the Aurora Colorado movie theater shootings recommend their client plead not-guilty by reason of insanity, his judge has said that he can be subjected to a “truth serum” injection and a polygraph examination as part of an evaluation to determine if he was legally insane at the time of the July 20 massacre.
Holmes will be administered a powerful drug to reduce his inhibitions in a procedure called a “narcoanalytic interview” while hooked up to a polygraph machine for the purpose of evaluating his credibility. Presumably, if he refuses to submit, he’ll not be allowed to claim insanity as a defense.
Obviously, anything he says while undergoing the interview will be taken down and used against him at his trial. In short, he must give up his right to remain silent, a fundamental constitutional right under the Fifth Amendment in the Bill of Rights. That could very well have disastrous consequences for his defense.
I was trained to apply the legal courtroom standard that in a criminal case the prosecutor has the burden to prove each and every element of the alleged crime beyond a reasonable doubt, including the fact that the accused exhibited the necessary intent and mental capacity to know what he was doing and that what he was doing was wrong. The defendant has no obligation to prove anything.
This boils down to a legal requirement that a potentially insane accused is assigned the burden of proving that he’s not insane. It’s akin to compelling a mentally incompetent defendant to prove his or her own mental incompetence, something that is not likely given that the person is probably retarded or insane in the first place – one would have to be competent to accomplish that task.
Naturally this prospect has his defense attorneys up in arms. They've filed motions objecting to it before their client’s plea hearing on to multiple counts of murder and attempted murder. He is charged with killing 12 people and wounding 70 at a midnight showing of batman film “The Dark Knight Rises.”
If he actually is insane or mentally incapacitated it would be easy for his inquisitors using skillful cross-examination to manipulate the interview in such a way as to make things appear that he was perfectly sane and mentally competent at the time of the crime. That’s precisely why our centuries old justice system permits defendants to remain silent and make their accusers prove the case.
What is next in the evolution of American criminal law after forcing defendants to take truth serums and undergo polygraph examinations if they wish to plead not guilty?
Can you imagine an Orwellian process like this in which defendants in every criminal case are required to prove it if they plead not guilty? The Fifth Amendment would evaporate completely right before our eyes.
This situation illustrates the problem with the insanity defense in American jurisprudence.
What possible difference does it make whether or not a person was insane when considering the question of whether or not he committed the acts forming the basis of the crime?
Insanity or mental incapacity should not even enter the picture until the trial is over and the accused is found guilty. The jury should determine only whether the accused is the person who committed the crime. They aren’t psychiatrists.
If the verdict is not-guilty then the question of mental state need not ever be considered. If guilty, it should affect only the disposition of the sentence.
Throughout the process the defendant should retain the right to remain silent and his Fifth Amendment rights should be respected. If he’s found guilty the trial is over and the question becomes what to do with him.
In that situation Fifth Amendment rights do not apply.
There is simply no good reason to erode the Fifth Amendment during the accusatory phase of the proceedings.
SNAP, Crackle, and Bust
By Mark Steyn
From Eli Saslow in the Washington Post, a portrait of America as Dependistan:
He wiped the front counter and smoothed the edges of a sign posted near his register. “Yes! We take Food Stamps, SNAP, EBT!”
“Today, we fill the store up with everything,” he said. “Tomorrow, we sell it all.”
At precisely one second after midnight, on March 1, Woonsocket would experience its monthly financial windfall — nearly $2 million from the Supplemental Nutrition Assistance Program (SNAP), formerly known as food stamps. Federal money would be electronically transferred to the broke residents of a nearly bankrupt town, where it would flow first into grocery stores and then on to food companies, employees and banks, beginning the monthly cycle that has helped Woonsocket survive.
The “economy” (unemployment, shuttered factories, debt) is permanent, but the economic cycle is monthly, thanks to “Uncle Sam Day”:
The 1st is always circled on the office calendar at International Meat Market, where customers refer to the day in the familiar slang of a holiday. It is Check Day. Milk Day. Pay Day. Mother’s Day.
“Uncle Sam Day,” Pichardo said now, late on Feb. 28, as he watched new merchandise roll off the trucks. Out came 40 cases of Ramen Noodles. Out came 230 pounds of ground beef and 180 gallons of orange juice.
SNAP enrollment in Rhode Island had been rising for six years, up from 73,000 people to nearly 180,000, and now three-quarters of purchases at International Meat Market are paid for with Electronic Benefit Transfer (EBT) cards. Government money had in effect funded the truckloads of food at Pichardo’s dock . . . and the three part-time employees he had hired to unload it . . . and the walk-in freezer he had installed to store surplus product . . . and the electric bills he paid to run that freezer, at nearly $2,000 each month.
Pichardo’s profits from SNAP had also helped pay for International Meat Market itself, a 10-aisle store in a yellow building that he had bought and refurbished in 2010, when the rise in government spending persuaded him to expand out of a smaller market down the block.
That old Democratic Depression anthem is too idealistic for such a world. But, for the new normal, “Snappy Days Are Here Again”:
Grocery store chains had started discount spinoffs. Farmers markets had incentivized SNAP shopping by rewarding customers with $2 extra for every $5 of government money spent. Restaurants, long forbidden from accepting SNAP, had begun a major lobbying campaign in Washington, and now a handful of Subways in Rhode Island were accepting the benefit as part of a pilot program.
And then what? Where does this story end? What happens to change the trajectory of these lives?
My Unrecognizable Democratic Party
The stakes are too high, please get serious about governing before it's too late
By TED VAN DYK
As a lifelong Democrat, I have a mental picture these days of my president, smiling broadly, at the wheel of a speeding convertible. His passengers are Democratic elected officials and candidates. Ahead of them, concealed by a bend in the road, is a concrete barrier.
They didn't have to take that route. Other Democratic presidents have won bipartisan support for proposals as liberal in their time as some of Mr. Obama's are now. Why does this administration seem so determined to head toward a potential crash and burn?
Even after the embarrassing playout of the Obama-invented Great Sequester Game, after the fiasco of the president's Fiscal Cliff Game, conventional wisdom among Democrats holds that disunited Republicans will be routed in the 2014 midterm elections, leaving an open field for the president's agenda in the final two years of his term. Yet modern political history indicates that big midterm Democratic gains are unlikely, and presidential second terms are notably unproductive, most of all in their waning months. Since 2012 there has been nothing about the Obama presidency to justify the confidence that Democrats now exhibit.
Mr. Obama was elected in 2008 on the basis of his persona and his pledge to end political and ideological polarization. His apparent everyone-in-it-together idealism was exactly what the country wanted and needed. On taking office, however, the president adopted a my-way-or-the-highway style of governance. He pursued his stimulus and health-care proposals on a congressional-Democrats-only basis. He rejected proposals of his own bipartisan Simpson-Bowles commission, which would have provided long-term deficit reduction and stabilized rapidly growing entitlement programs. He opted instead to demonize Republicans for their supposed hostility to Social Security, Medicare and Medicaid.
No serious attempt—for instance, by offering tort reform or allowing the sale of health-insurance products across state lines—was made to enlist GOP congressional support for the health bill. It passed, but the constituents of moderate Democrats punished them: 63 lost their seats in 2010 and Republicans took control of the House.
Faced with a similar situation in 1995, following another GOP House takeover, President Bill Clinton shifted to bipartisan governance. Mr. Obama did not, then blamed Republicans for their "obstructionism" in not yielding to him.
Defying the odds, Mr. Obama did become the first president since Franklin Roosevelt to be re-elected with an election-year unemployment rate above 7.8%. Yet his victory wasn't based on public affirmation of his agenda. Instead, it was based on a four-year mobilization—executed with unprecedented skill—of core Democratic constituencies, and on fear campaigns in which Mitt Romney and the Republicans were painted as waging a "war on women," being servants of the wealthy, and of being hostile toward Latinos, African Americans, gays and the middle class. I couldn't have imagined any one of the Democratic presidents or presidential candidates I served from 1960-92 using such down-on-all-fours tactics.
The unifier of 2008 became the calculated divider of 2012. Yes, it worked, but only narrowly, as the president's vote total fell off sharply from 2008.
Other modern Democratic presidents have had much more success with very different governing strategies. In 1961-62, John Kennedy won Republican congressional and public support with the proposals of his Keynesian Council of Economic Advisers chairman, Walter Heller, to cut personal and business taxes "to get America moving again," and for the global free movement of goods, services, capital and people.
In 1965, Lyndon Johnson had Democratic congressional majorities sufficient to pass any legislation he wanted. But he sought and received GOP congressional support for Medicare, Medicaid, civil rights, education and other Great Society legislation. He knew that in order to last, these initiatives needed consensus support. He did not want them re-debated later, as ObamaCare is being re-debated now.
Johnson got bipartisan backing for deficit reduction in 1967, when he learned that the deficit had reached an unthinkable $28 billion. Faced with today's annual deficits of $1 trillion and federal debt between $16.7 and $31 trillion, depending on whether you count off-budget obligations, LBJ no doubt would appoint a bipartisan Simpson-Bowles commission and use it to get a tax, spending and entitlements fix so that he could move on to the rest of his agenda. Bill Clinton took the same practical approach and got to a balanced federal budget as soon as he could, at the beginning of his second term.
These former Democratic presidents would also know today that no Democratic or liberal agenda can go forward if debt service is eating available resources. Nor can successful governance take place if presidential and Democratic Party rhetoric consistently portrays loyal-opposition leaders as having devious or extremist motives. We really are, as Mr. Obama pointed out in 2008, in it together.
It's not too late for the president to take a cue from his predecessors and enter good-faith budget negotiations with congressional Republicans. A few posturing meetings with GOP congressional leaders will not suffice. President Obama's hype about the horrors of fiscal-cliff and sequestration cuts, and his placing of blame on Republicans, have been correctly viewed as low politics. His approval ratings have plunged since the end of the sequestration exercise.
But time is running out for Democrats to get serious about governance. That concrete barrier—in the form of the 2014 midterm—lies just ahead on the highway, and they're joy riding straight toward it.
Senate Democrats’ long-awaited budget fizzles
There was a lot of buildup to the first budget released by Senate Democrats since 2009, but the actual document didn’t even meet low expectations.
After blasting House Republicans for being overly intransigent and unwilling to compromise, Senate Democrats unveiled a budget that not only raises taxes by nearly $1 trillion by closing unspecified loopholes, but it actually increases spending on a net basis.
In theory, the plan authored by Senate Budget Committee Chair Sen. Patty Murray claims to cut spending by about $975 billion from fiscal years 2014 through 2023. That includes $240 billion in defense cuts accounting for the winding down of the war in Afghanistan, $240 billion in claimed “responsible savings across domestic spending” and $275 billion in Medicare savings from “further realigning incentives throughout the system, cutting waste and fraud, and seeking greater engagement across the health care system.” The budget also assumes interest payment savings.
The problem is that these paper spending cuts are more than offset by the proposal to spend $960 billion to replace the automatic sequestration spending cuts as well as the $100 billion in new stimulus spending.
The deficit reduction that does exist comes in the form of tax increases. The budget says, it, “Achieves $975 billion in deficit reduction by closing loopholes and eliminating wasteful spending in the tax code that benefits the wealthiest Americans and biggest corporations.” But it doesn’t specify which loopholes will be closed.
The plan also offers no specific, broader reforms to the nation’s entitlement programs.
Democrats’ clear political calculation here is that their vague budget will be less of a target, allowing them to focus on blasting the House Budget Committee Chair Rep. Paul Ryan’s proposal for being cruel. But in the process, they’ve shown themselves to be completely un-serious.
There is a new lot of postings by Chris Brand just up -- on his usual vastly "incorrect" themes of race, genes, IQ etc
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Posted by JR at 1:46 AM