Odds and Ends

The new Cormoran Strike is even longer and as one review notes, tbh, there is "filler" but overall it is an enjoyable read. Perhaps, the fact six hundred plus pages (with a long "talking killer" chapter to explain things) was somewhat quick reading is telling, but there are pleasures to comfort reading too. Giants (Dallas final drive/two point to avoid OT) and Jets (basically no offense; Pats get a bye after Houston choked week before) ended in fairly typical fashion. The Jets QB seems promising though. Browns went from 0 to 7.5 wins. The season premiere of The Orville was cute -- character episode. 2019 is about here and we will soon have the 2020 presidential race. Wish the asshole was gone now. Onward.

Happy Holidays! (Shutdown Edition)

"Federal Panel Of Judges Dismisses All 83 Ethics Complaints Against Brett Kavanaugh"

It is expected and appropriate under current law that the ethical inquiry of Kavanaugh was held to be moot now that he is on the Supreme Court. The process is for lower court judges so there was an overall doomed to fail nature to the affair. But, the order says they are serious allegations (lying to Congress etc. are) and that a copy of the order should be sent to the appropriate investigatory parties, namely congressional committees. So, ball in your court, House Judiciary Committee. There is a certain wariness there, but this isn't over.

ETA: Note that is the title of a NPR article and is misleading in that some might think they did it on substantive as compared to procedural grounds.

Jacqueline Caal, Seven, Statistic (and Symbol)

The death of seven year old Jacqueline Caal is a chance to put out front and center the horrible nature of our border party. "Horrible" is probably too bland. The statistic cited (further backstory added) that over seven thousand people died 1998-2017 is horrendous. But, not enough for some, so Trump amped it up. Some judge those who lived in the past harshly for supporting various bad things. A bit of humility might be warranted.

Supreme Court Watch

The move to have a boring first sex offender "justice" (and what an ass Collins is) term continues. Latest death penalty appeal had no dissent (Sotomayor already flagged the problem with lethal injection protocols recently). The case involved a murder during a burglary. Justice would have been to continue detaining him as was done for over twenty years. This does not seem like a "worse of the worst" type of murder, to cite a basic standard.

Double Jeopardy

[N]or shall any person be subject for the same offence to be twice put in jeopardy of life or limb..."

While the Supreme Court made clear that it will clean things up regarding the incorporation of the Fines Clause, it is somewhat surprisingly unlikely to overrule the "separate sovereigns" rule regarding double jeopardy. Some flagged this case (and Kavanaugh's potential fifth vote) during the confirmation battle of the sex offender justice (so-called).  But, it is rather unclear if that was a major concern.

Plus, when the issue was Puerto Rico (part of the federal government, so the rule doesn't apply regarding federal/commonwealth prosecutions), RBG flagged her interest in ending it.  Before it seemed like backstop to Trump pardons (someone like Manafort could be prosecuted for state crimes), many of the same people upset might have agreed the rule was dubious. It seems like trick to be able to subject a person twice for the same offense. That is, until there is a push for the feds to prosecute some civil rights crime after a state acquittal (e.g., the Trayvon Martin case).

But, the justices went full bore (Thomas voiced some opposition to the rule too but doesn't ask questions) on the defendant's lawyer with the exception of Ginsburg and later on Gorsuch.  During the Fines argument, Gorsuch sanctimoniously spoke of how most of the incorporation cases were settled back in the 1940s. No.  Other than the First Amendment, the 1960s (e.g., the right to a lawyer) had quite a few.  Here he found it strange the federalism resulted in two bites of the apple in a way that arguably burdened liberty.  When else does that occur?  The government provided examples such as taxes. Overall, as noted by of all people Kagan, the rule furthers federalism, which ultimately involves state power.

It looks there is a clear majority for the idea -- to quote a 1950s pre-incorporation (yes, the 1950s) -- case upholding the dual sovereignty rule that "Precedent, experience, and reason alike support the conclusion" warrants protecting it.  Precedent was cited by Kagan and Breyer as well as newbie Kavanaugh, who cited his strong barrier for changing it.  He also -- against an unwise one-note originalist defense -- noted that stare decisis is an originalist principle.  Yes, which underlines the ultimate limited nature of that whole matter. Plus, clearly few justices are that into it.

Conservative Senator Hatch provided an amicus brief in support of ending the rule in part because of the expansion of federal crimes which reach much more areas that traditionally would be state only.  Consider that even the assassination of JFK was to be a state trial.  There was reference to this concern during the oral argument but it is unclear how much ending the rule will matter.  If the same offense (let's say an abuse police action) will result in two possible prosecutions because of what exactly is charged, however, we still seem to be hairplitting, aren't we?  There is a policy to take into consideration a state prosecution, but we still had double prosecutions of various mass shooters, for example.

In that Puerto Rico case, Justice Thomas cited his concern about applying the rule to cases involving tribes (which already are a limited "sovereign" as is) while also joining RBG's wider concerns.  The bigger issue for the justices, aided and abetted by the originalist argument relying on just that issue (ultimately, he was left saying you could treat domestic cases differently, which is true, but he opened the door) was first applying it internationally.  The nation does have to apply the same rule and the prosecution cannot be a sham.  But, that need not occur for problems to arise, especially regarding punishment and prosecutorial resources.  There is not an exception for a richer sovereign to prosecute again because the first one had to deal with limited resources and perhaps a less skillful attempt.

I was sympathetic regarding ending the dual sovereignty rule since it does seem unjust to try a person twice for an offense.  The idea that it isn't the same offense because a different sovereign is involved doesn't quite gel. After listening to the oral argument, didn't really change my mind.  The factors discussed above suggests too that ending the rule can be done in such a way that the best case scenarios for applying it will arise seldom. Rules often have exceptions. This includes the concern about some rush to the courthouse, where a state or the federal government will lose out in the process. Some mechanism should be possible to avoid this or at least temper the concern. And, with states so much more obligated to follow national rules, including as applied to criminal justice, precedent arguably goes another way too. 

Finally, it is unclear how often this sort of thing would come up, especially if one criminal event can already be the subject of multiple prosecutions, which we can assume can be both state and federal in nature. Precedent is an important thing but so is basic justice.  It is unclear to me that the rule, all things considered, flows to the former. 

Happy Hankukah

Hanukkah this year runs from the evenings of the 2nd until tonight. I again provide this past discussion and wish to find a good book that provides the surrounding history for the general reader. Both the immediate Maccabees revolt and developing holiday.

A More Beautiful and Terrible History: The Uses and Misuses of Civil Rights History by Jeanne Theoharis

I added this book to the side panel. Here is a basic outline.

Lessons of History 

(these should be kept in mind when thinking about today's movements as with the myths below)

[1] Myth of Liberal North (also many long term failures including continual segregation)

[2] Long History of Oppression (no easy solution of simply facing up to problem and it being over)

[3] Media Often Not Helping

[4] Myth of the White Moderate  (civil rights movement generally unpopular including MLK up to his death & beyond)

[5] Breadth of Cause -- Desegregation, Criminal Justice, Economic Justice and Global Justice (Vietnam, colonial movements, world peace etc.)

[6] Young and women not respected  

Lessons from the Montgomery Bus Boycott (general lessons)

[1] Perseverance thru failure

[2] Anger leads to action

[3] Sense of possibility = action

[4] Collective organizing

[5] Disruptiveness

[6] Activism = cost/sacrifice including psychological, economic, family and physical (violence)

[7] Mentoring/community of support important

[8] Learning from experience

[9] Multiple ways used against protests ('few bad apples' ... discredit as commies or outside agitators / only for self ... harassment ... legal) and ways to respond

[10] Value of multiple strategies of resistance

RIP Bush41

I added a couple books on the side panel on the Nelson Mandela trial and myths about the Civil Rights movement. It is helpful to remember the complexities of history, which is surely true with the death of the last credible/legitimately elected Republican president. The negatives are true but so are the more positive aspects of his character and public service.