Tag Archives: Scalia

LIONEL PODCAST: Scalia Is Royally, er, Supremely PO’d

Royally. And I refer to the term designating annoyance and perturbation versus inebriation as our UK friends might intone. Nino called the majority’s reasoning “quite absurd.” And he is such a marvelous style in exhibiting and explicating his disdain. As do I.

“The court’s decision reflects the philosophy that judges should endure whatever interpretive distortions it takes in order to correct a supposed flaw in the statutory machinery,” he wrote.

“It is up to Congress to design its laws with care,” he added, “and it is up to the people to hold them to account if they fail to carry out that responsibility.”

Justice Scalia announced his dissent from the bench, a sign of bitter disagreement. His summary was laced with notes of incredulity and sarcasm, which sometimes drawing amused murmurs in the courtroom as he described the “interpretive somersaults” he said the majority had performed to reach the decision.

LIONEL PODCAST: Police Protests – It’s About Time

Protesters march in New York, carrying signs depicting the haunting eyes of Eric Garner.

The eyes have it. As symbols go this one’s hard to beat. The message and power are breathtaking.Too bad Eric Garner’s not the best case to be made, but it’ll have to do.

But don’t listen to this podcast if you want to be mollified. Either way. There’s no specific right or wrong here. Nothing Manichean or apodictic. This is a nuance minefield. It’s years of perceived and actual police excess but this time it’s been accompanied by a deliberate and powerful activism, the likes of which New York City, in particular, hasn’t seen for decades.

  • Eric Garner and Michael Brown are not good cases to clearly exemplify raw and unbridled police excess as both resisted arrest, confronted the cops and contributed in large part to the tragic and deadly escalation of their cases. You simply can’t get past these facts. Brown charged Officer Wilson; Garner resisted arrest. That is not to say that the police acted appropriately or professionally in any wise. In fact they may have. The point is that’s not the point. There are better cases. Fact. Kelly Thomas, Dillon Taylor, Gil Collar, Akai Gurley, Tamir Rice — these are better examples of clear excesses. Easier to digest and grasp by all parties and factions. Woefully bereft of pithy memes and hashtag messaging.
  • My Nine-Point Plan I commend to you for your perusal and review. It lists and adumbrates my suggestions and recommendations as a necessary start.
  • There are white folks who want nothing to do with the suggestion that police act inappropriately and excessively. They believe that it’s racial bellyaching, promoted and exacerbated by poverty pimps and racial arsonists. And they’re wrong.
  • There are people of color who, perhaps habituated to yet another example of police shooting, want nothing to do with the suggestion that Eric Garner and Michael Brown had anything to do with precipitating their own tragic ends. They see Messrs. Brown and Garner as police victims, simple. And they’re wrong as well.
  • This issue requires careful consideration and rational analysis and, moreover, critical thinking skills. Keep the sloganeering and the catchy meme rhetoric. I want solutions. Not an Instagram moment or a retweet.

Breaking the Set. Abby Martin of RT’s Breaking the Set and I enjoy a spirited and targeted discussion on all that is the latest in Eric Garner and the problems associated therewith. Abby’s without peer in getting down to the the tacks of brass and — get this — allotting adequate time to discuss, dissect and digest an issue.

I invite you to refer to my YouTube Channel and subscribe.

THE LIONEL PLAN: Preventing and Dealing With the Next Eric Garner

As the country moves past its initial and collection reaction and shock to the Michael Brown and Eric Garner grand jury decisions, the issue is now what to do after. Specifically, what needs to be done to move forward and how to both prevent and deal with the next (inevitable) tragedy. Herein is my nine-point plan.

  • Mandatory special prosecutor assigned in police shootings. DA’s will be prohibited from handling prosecutions of police officer shootings and/or deaths within their jurisdiction regarding officers whom they must necessarily deal with on a daily basis.
  • Police union messaging. Police unions must not be viewed as adversarial to the public and must tailor their message and directives avoiding at all costs ostensible tone-deaf insensitivity.
  • Civilian ride-along programs. The public simply has no idea of what police do. Increased participation in ride-along programs and similar liaison programs will help dramatically especially when combined with media and social media outlets highlighting the efforts.
  • Media instruction and tutelage as to what police do. The public and media think that arrests are invitations to cooperate. They must understand the rather brusque process of surrender and the danger to police of “pretty please” seizure.
  • Education of public as to grand jury process. The ham sandwich myth must be forever corrected and eliminated altogether.
  • Reevaluation and ultimate reversal of 1033 programs. Programs providing for militarization of police agencies fuel subliminal antagonism and exacerbate the inherent problems.The historic firewall between civilian law enforcement and military operations as in Posse Comitatus must be enforced.
  • Mandatory camera programs. Cameras proved invaluable in establishing a level of transparency in the Eric Garner case. Without them, no facts would have been readily available. The ACLU has instituted programs allowing for citizens to download apps for smartphone use to document and record questionable and suspect police behavior.
  • Expansion of Citizen Complain Review Boards and CCRB-like programs. Civilian jurisdiction in reviewing police abuse claims creates the perception of cooperative involvement and community investment.
  • Police-civilian liaisons. Emphasis on community policing and symbiotic cooperation is encouraged versus antagonistic coexistence.

 

LIONEL PODCAST: Indict This!

One more time. Just listen to me. This is all you’ll need to know.

 

What Ferguson Doesn’t and Didn’t Mean

WHAT FERGUSON DOESN’T MEAN

by

LIONEL

Let’s be very clear about something regarding the tragedy that was Ferguson. And clarity is something desperately needed. It’s critical to note what the case does not mean.

The grand jury’s refusal or reluctance or inability to indict Officer Darren Wilson, i.e. by returning a “no true bill” on a host of charges from murder to involuntary manslaughter, doesn’t mean that another grand jury cannot be reassembled to indict because double jeopardy does not apply. (Double jeopardy attaches when a petit jury is sworn.)

It doesn’t mean that Officer Wilson wasn’t a bad cop or negligent or racist or incompetent. It doesn’t mean that Ferguson is not a hotbed of intolerance. It merely means that a grand jury did not find probable cause (PC) to indict. And as burdens of proof go, PC is notoriously simple to overcome. I contend a more contemporary definition of PC is “He probably did it.” And, yes, it’s significant to note that not a single charge was found to satisfy PC. Nothing. Especially in view of the esteemed New York jurist Sol Wachtler’s now famous quip that a good prosecutor could indict a ham sandwich.

It doesn’t mean that Bob McCulloch was an inept prosecutor or held back evidence or that the evidence was in and of itself insufficient. It doesn’t mean that Wilson will not be found civilly liable in a host of potential lawsuits and it doesn’t mean that the failure to find criminal liability in any way precludes civil liability exposure. It doesn’t mean that witnesses were necessarily lying or perjurious. They can and often change their minds, forget and experience different perceptions of the same events.

It doesn’t mean that McCulloch should have necessarily appointed or requested a special prosecutor, though in retrospect it might have been wise. It doesn’t mean that his familial relationships with police somehow disqualify him as a prosecutor. Try finding one who doesn’t have strong ties to cops. It doesn’t mean that Michael Brown asked to be killed or is a thug or a criminal. No, the lack of criminal charges, the deliver of no true bill doesn’t mean anything other than no criminal liability was found. A radiologist who scans an X-ray and announces no evidence of bone fracture doesn’t mean that a patient isn’t hurt or in pain or limping. A negative pregnancy test doesn’t mean that no one had sex or that a rape didn’t occur.

Many civilian observers have quickly realized that criminal law and real life prosecutions aren’t Law & Order. And I daresay they’re shocked. Shocked at what many of us who’ve served in the M*A*S*H units of the DA’s office and trial warrior trenches have known for years: the system exhibits many iterations from surgically precise to reckless and inept. The grand jury was theoretically designed to act as a buffer, a detached and separate tribunal to protect us from a marauding crown. And it’s fraught with problems.

Historically the grand jury is the prosecutor’s tool. And interestingly enough, now making the rounds is SCOTUS Justice Antonin Scalia’s 1992 opinion in Williams. It’s been quoted (interestingly enough) by the same folks who until recently most probably reviled him. He noted that historically “neither in this country nor in England has the suspect under investigation by the grand jury ever been thought to have a right to testify or to have exculpatory evidence presented.” Touché, Nino. The Williams court refused to dismiss an indictment where exculpatory evidence was not introduced. Here, in a most novel approach, it seems the juridical vigilantes want an indictment delivered because too much exculpatory evidence was presented. Go figure.

The grand jury’s decision anent the tragedy that is the death of Michael Brown doesn’t mean anything other than PC as to criminal liability was not found, seen, presented or allowed to be established. That’s it in a nutshell. It’s time to take a breath and continue to demand accountability from all police departments everywhere and always. And if you’re up to the challenge, Google “Kelly Thomas,” the case of a schizophrenic homeless man who was beaten to death by two Fullerton, California, cops who were ultimately acquitted. There were no riots in protest.

Now imagine the reaction to an acquittal in Wilson’s trial had it been permitted to go forward.

 

The Militarization of the Police Is the Problem

Prolegomenon. There is an old joke about a man looking for a watch on Broadway when it was lost in the Bowery; when asked why he was looking on Broadway instead of where the watch was lost he replied “the light is so much better here.” Similarly, activists don’t use the incident that best exemplifies their cause, they use the most highly publicized event that can be linked to their cause, even if that link is tenuous. Because the light is so much better.

A meme that’s long gone. Take a look, a gander at this image. Norman Rockwell painted this (“The Runaway”, shown here) for a Saturday Evening Post cover that was published September 20, 1958. The imagery is perfect. Understanding cop — with a lot of time on his hands — reasoning with a lad who ran away. What would today’s version be? A kid sedated by a psychotropic cocktail, under lock and key or recovering after having been Tasered or beaten (or worse) for mouthing off to a cop. This is the crux of the problem: the militarization of the police. The destruction of the idea and notion that they’re to help and assist and not necessarily kick ass and take down names.

Compare this theme with today’s.

Seeming disparity of coverage and concern. Kelly Thomas, Dillon Taylor, Gil Collar. White guys beaten and shot to death by cops: white, non-white and black. (I still don’t know what the hell non-white means.) It’s relevant, it’s pertinent and it needs to be explored. Not because that excuses any alleged police overreaction but because it adds perspective. It adds light. The problem is endemic, inherent and knows not race as a primary factor. Correlation versus cause are two distinctly different considerations. Critial thinking and precise issue analysis are needed desperately.

Let me be brutally frank. I hate, no! I loathe discussions that victim categorize by race. What is this? Are we keeping a tally? No, that’s not the basis of my indictment. If a behavior is wrong, if a reaction is unwarranted, it’s wrong simply because it’s wrong. Likewise you can’t excuse wrongdoing simply because it’s rare and infrequent. A black suspect mistreated by cops is as wrong as a white suspect mistreated by cops. Cops who are trained professionals, I might add.

But what I cannot understand is the selective categorization of victim demographics. Yes, without a doubt, there are discrepancies between white and black treatment. True. The history of police treatment is marred and horrible to be sure. But issue analysis and critical thinking a required here. Let’s stick to the particular issue and framework that this disquisition attempts to address. Work with me in this one.

What the problem is and has been is an attitudinal militarization of police that has been exacerbated by the recent injection of 1033-like programs into police departments already burdened by historically entrenched and intrinsic racism. Without a doubt. let’s be clear: Racism has existed, the disparate treatment of criminal detainees and suspects still exists. Fine, let’s all stipulate to that and move on.

Here is the gravamen of my indictment.

  • Police training and institutional mindsets need immediate and drastic revision.
  • The celerity in the use of deadly force must be addressed. Alternatives to force and dispute resolution must be included in officers’ arsenal.
  • Racial arson, especially when fueled by those who seek to enjoy pecuniary gain, must be decried and attacked for what it is.
  • The mainstream media must seriously readdress the way in which it covers incendiary matters, especially in view of the 24/7 cable news wheel that feeds data and coverage without surcease with no recognizable sense of proportion, sobriety or responsibility.
  • The notion of the peace officer has gone the way of RoboCop. So long, Sheriff Andy. The message of the role of officer must be retooled and readdressed.
  • The principles of Posse Comitatus must be revisited to readdress the division between civilian law enforcement and military.

Good luck explicating this perspective. Ted Baxter and Ron Burgundy would be proud.

 

Lionel on RT: “Missouri Is To the Grand Jury What Florida Is to Elections”

On November 28, 2014, I appeared with RT‘s Ameera David discussing inter alia Ferguson, the grand jury process Missouri style, Bob McCulloch and the entire slew and lot of all those involved and concerned.

LIONEL PODCAST: Why the Professional Left Is Clueless As to Ferguson, Darren Wilson and Grand Juries Inter Alia

The left left a long time ago. The prototypical leftie cannot fathom any possibility that Darren Wilson was not indicted, that no true bill was rendered, that he’s not cracking rocks upstate or in the Greybar Inn for any reason other than institutional corruption and/or judicial putrescence. They simply can’t. They’ve signed on to the trope that the fix is in, that McCulloch gamed the system and that any chance for justice has left the station. For it seems that these juridical autodidacts and overnight Internet Perry Mason wannabes have gotten it through their thickened Neanderthal crania that justice hasn’t been served here and it must be because this untethered and out of control prosecutor and/or this racist system have struck again. Where were they I ask when runaway grand juries were working overtime in indicting ham sandwiches à la Wachtler like the swing shift at the Carnegie? No, the refrain is that Mad Dog McCulloch gummed up the juridacture works and plied the jurors grand with mountains of data, reports, witnesses and labyrinthine testimony and they were plumb tuckered out and threw in the towel. That’s their story and there sticking to it, I reckon.

Missouri is to the grand jury process what Florida is to the electoral. First, just what is the grand jury anyway? Well, Jethro, I’m glad you asked. To put it succinctly, no one knows. No, seriously. It’s a funky kinda outboard tribunal of whacky star chamber outliers that can serve as an investigative as well as accusatory body but is basically the indentured bitch of the prostituter, er, prosecutor. (I’m not kidding.)

Somebody wake Nino. In United States v. Williams 504 U.S. 36 (1992), Mr. Justice Scalia delivered the majority opinion and in part noted thusly as to the tenuous and rather fascinating role of the tendentious little brother to Torquemada. Read this beaut, the highlighted in particular. After all, that’s why they’re highlighted.

“[R]ooted in long centuries of Anglo American history,” Hannah v. Larche, 363 U.S. 420, 490 (1960) (Frankfurter, J., concurring in result), the grand jury is mentioned in the Bill of Rights, but not in the body of the Constitution. It has not been textually assigned, therefore, to any of the branches described in the first three Articles. It ” `is a constitutional fixture in its own right.’ ” United States v. Chanen, 549 F. 2d 1306, 1312 (CA9) (quoting Nixon v. Sirica, 159 U.S. App. D.C. 58, 70, n. 54, 487 F. 2d 700, 712, n. 54 (1973)), cert. denied, 434 U.S. 825 (1977). In fact the whole theory of its function is that it belongs to no branch of the institutional government, serving as a kind of buffer or referee between the Government and the people. See Stirone v. United States, 361 U.S. 212, 218 (1960); Hale v. Henkel, 201 U.S. 43, 61 (1906); G. Edwards, The Grand Jury 28-32 (1906). Although the grand jury normally operates, of course, in the courthouse and under judicial auspices, its institutional relationship with the judicial branch has traditionally been, so to speak, at arm’s length. Judges’ direct involvement in the functioning of the grand jury has generally been confined to the constitutive one of calling the grand jurors together and administering their oaths of office. See United States v. Calandra, 414 U.S. 338, 343 (1974); Fed. Rule Crim. Proc. 6(a). [e.s.]

Huh? Did you dig that? (1) It belongs to no branch of the “institutional government” and (2) its relationship to the courts is “at arm’s length.” WTF, indeed. Translation: They be on their own. So let me return to the initial point that was made, how can the archetypal left rant and rail anent and against the grand jury in the case sub judice when even Nino has nary a clue of what they do and are? Because it’s nothing to do with fact but feeling and fad.

Bless their hearts. Think Progress in the subject of inspiring a hugely cited social media Twitter meme sequence likewise cites Scalia in Williams:” [N]either in this country nor in England has the suspect under investigation by the grand jury ever been thought to have a right to testify or to have exculpatory evidence presented.” And from this they took this to indict the Ferguson grand jury and Wild Man McCulloch. What a stretch. But that’s the essence and politics of the left-right paradigm. Not to mention, they simply have no idea of what the feck they’re talking about.

LIONEL PODCAST: My Interview With A Bona Fide Genius

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Cary Harrison is a genius. Not an exaggeration. Not hyperbole or a well-intended, polite compliment. No unwarranted magnification, puffery or grandiosity here. But there’s more. And he’s more.

He’s a raconteur, radio performer, TV host and American information treasure.

As Henry van Dyke said, “Genius is talent set on fire by courage.” And if you’re in this here alternative news and interpretation biz, you’d better have beaucoup courage and a pair of elephantine, gargantuan,  and Brobdingnagian bawls. All of which, he’s ably and sufficiently possessed.

Enjoy this. Two great friends looking and laughing at the world through the peculiar prism of unmitigated temerity and the aforementioned bawls.

LIONEL PODCAST: There Are Flying Saucers

“There is no doubt in my mind, after 37 years of study and investigation that the evidence is overwhelming that planet Earth is being visited by intelligently controlled vehicles whose origin is extraterrestrial. There are no acceptable arguments against flying saucer reality, only people who either haven’t studied the relevant data or have a strong will not to believe that Earth is at the bottom of the heap sociologically and technologically in our local galactic neighborhood.” — Stanton Friedman, The Case for the Extraterrestrial Origin of Flying Saucers, 1995

It is not subject to debate. The data are everywhere.

“The evidence is overwhelming that the Earth is being visited by intelligently controlled vehicles from off the Earth.”

“There are no good arguments to be made against the conclusion that some UFOs are intelligently controlled vehicles from off the Earth.  Some skeptics may be well intentioned, but they are almost always ignorant of the significant scientific data indicating UFO reality.  They read the newspapers but not the solid information.  They are unaware of the myriad landing-trace cases, the multitude of “critter” reports and Earthling abductions, the numerous large-scale scientific collections of data, the many published scientific studies indicating that trips to nearby stars in our galactic neighborhood are already feasible without violating the laws of physics or invoking science fiction techniques.”

Stanton Friedman, nuclear physicist, premier Ufologist and leading UFO researcher, author of several books and numerous articles on UFOs.

I can think of nothing more fascinating and truly awesome! than the notion of life forms vastly superior to those (us) who think they’re vastly superior, swimming about the multiverse, multidimensionally and anti-gravitically, at inconceivable speeds, surrounded and pillowed by their self-contained personal gravity and inertia fields, destroying our hard-wired notions of space travel absolutes. And it’s been going on since man first slogged from the bog.

Think if it this way. Mother Earth is 4.5B years old. Or 4500M years old. If another planet were 4501M years, they’d have a Mil on us. From 1903 to 1969 we went from Kitty Hawk and the Brothers Wright to Neil Armstrong and his small step for man. In 66 years! Think what a planet can do with 1000 millennia under its belt.