Sunday, July 31, 2011


There is an interesting case decided by the Supreme Court in 2009.  Melendez-Diaz v. Massachusetts 129S.Ct. (2009) is a Confrontation Clause case.  The Sixth Amendment says:

In all criminal prosecutions, the accused shall enjoy the right to a speedy and public trial, by an impartial jury of the State and district wherein the crime shall have been committed, which district shall have been previously ascertained by law, and to be informed of the nature and cause of the accusation; to be confronted with the witnesses against him; to have compulsory process for obtaining witnesses in his favor, and to have the Assistance of Counsel for his defence.

Following a 2001 arrest in which police found four bags of cocaine in a car occupied by Luis Melendez-Diaz, he and two other persons were taken to jail in a squad car.  Police noticed that the arrested men were fidgeting in the back seat of the car.  After booking the men officers searched the squad car and found nineteen bags of cocaine.  

All the cocaine was sent to a state laboratory for analysis. The lab reported the substances were cocaine.  Under Massachusetts law the lab submitted an affidavit to prosecutors so that their findings could be admitted as evidence in the trial against Melendez-Diaz.

At trial Melendez-Diaz objected to admission of the lab report because he had no opportunity to confront the laboratory personnel in court.  The objection was overruled,  Melendez-Diaz was convicted.  He appealed on the Sixth Amendment claim.  The Massachusetts Court of Appeals sustained the trial court.  The state Supreme Court refused to hear Melendez-Diaz's case.  On a writ of certiorari the case went to the United States Supreme Court.

That wild liberal Nino Scalia wrote the opinion that said the laboratory report is a testimonial statement as described in the Court's prior opinion in Crawford v. Washington, 541 U. S. 36 (2004).  The Sixth Amendment applies and Melendez-Diaz was entitled to confront the laboratory personnel testifying against him.

Melendez-Diaz was upheld in a case decided this June.  In Bullcoming v. New Mexico Justice Ginsburg reasserted the stare decisis of Crawford and Melendez-Diaz.  The Bullcoming case questioned whether the report of a blood alcohol machine was testimonial under the Crawford and Melendez-Diaz line of cases.

The wrinkle here is that Melendez-Diaz got himself arrested again on a nearly identical offense.  In 2004 police arrested Melendez-Diaz after they engaged him in a "controlled buy" of cocaine.  Melendez-Diaz's "vehicle was towed to a police department lot. A careful examination of the interior of the automobile led to the discovery of a secret compartment above the glove compartment in which was found the $630 in buy money, a number of small bags containing a white powdery substance, and a Tylenol bottle holding small bags containing a black tar-like substance as well as small bags containing a whitish beige rock substance." See, Commonwealth  v. Melendez-Diaz,SJC-10857 (2011).

Before the Court ruled in Melendez-Diaz, Melendez-Diaz faced another criminal  trial in which an affidavit from a state laboratory was used against him.  Melendez-Diaz did not object.  He was convicted.  Now Melendez-Diaz wants to use the rule announced in Melendez-Diaz to have his conviction reversed in a habeas corpus proceeding.

A proceeding in habeas is what's known as a collateral attack.  The convicted person wants another bite of the apple and must demonstrate that the proceedings were fundamentally unfair, violated a principle of law the Supreme Court, or other controlling authority, put in place before the underlying conviction became final.  Collateral relief will only set aside the conviction. The state generally retries the case in a manner to cure the defect in the original proceedings.

The Massachusetts Supreme Judicial Court has refused to apply the holding in Melendez-Diaz in the collateral attack by Melendez-Diaz of his conviction following the 2004 conviction.  The rule announced in Melendez-Diaz was not in force when Melendez-Diaz's second conviction occurred, so there was no ground for collateral relief.

Raising a claim of Constitutional dimension in habeas permits the issue to be appealed in an appeal to the federal courts.  As this second Melendez-Diaz case goes forward seeking relief from the federal courts we should expect Melendez-Diaz 's legal counsel to argue that the rule enunciated in Melendez-Diaz was not a new or novel rule.  The rule was established in Crawford. Melendez-Diaz only clarified the holding in Crawford.

Friday, July 29, 2011



American Crossroads, the radical rightwing, big money, swift boating, scrutiny evading, beyond the veil of official party control, money raising arm of the Republican Party is in the business of buying elections for Republican candidates.  They are not interested in free speech.  They are masters of bought speech.

American Crossroads remind me of the pornographers of the late 1970's and early 1980's.  In response to Chief Justice Warren Burger's opinion in Miller v. California, 43 U.S. 15 (1973).  Attempting to define that which is and that which is not pornography Burger concluded a three part test with the following words.  "The First Amendment protects works which, taken as a whole, have serious literary, artistic, political, or scientific value, regardless of whether the government or a majority of the people approve of the ideas these works represent."
Pornographers began wrapping up the female porn stars in the American flag, inserted patriotic footage in their work, and attempted to diminish Burger's test by demonstrating that as a whole their smutty productions had political content.
American Crosswords has similar verbiage on their website, They say: "The mission of American Crossroads is to help crystallize the debate over these two diametrically opposed visions for America’s future, to educate voters on how these contrasting visions will shape America’s future, and to empower citizens like you to hold lawmakers and office-seekers accountable for where they stand."
They don't tell you that what they really stand for is overwhelming political campaigns with half truths and distortions, taking political discourse from engaging in serious discussions of the issues and burying Democratic candidates under an avalanche of false impressions.  The work of American Crossroads is the work of dirty politics made possible by the horrendously bad decision of the Supreme Court in Citizens United.
A few miles to the east of the Land of Oz those with long memories will remember the work of American Crossroads.  Missouri's Secretary of State, Robin Carnahan, was running for the U.S. Senate against a Republican the Citizens for Responsibility and Ethics in Washington (CREW) listed as one of the "most corrupt."  That of course in Senator Roy Blunt, who the Wall Street Journal called "Senator Earmark,"  The full CREW report on Blunt is available at 
American Crosswords spent $2,320,394 opposing Robin Carnahan, according to the Sunlight Foundation. See,
The ads against Carnahan were misleading accounts, according to, of her positions on Health Care Reform and Medicare Reform.  See,
Now comes the misleading attack on Missouri's senior United States Senator.  They want to blame the first termer for having voted for trillions of dollars in debt, backing plans to raise taxes, and handing President Obama blank checks.
According to POLITICMO  Crossroads GPS has already spent $219,000 and has pledged to spend another $240,000 through August 6th in the smear campaign against Senator McCaskill.  See,  According to the Saint Louis Post-Dispatch American Crossroads, and their subsidiary Crossroads GPS, plan to spend more than $2.4 million.  See,
If American Crossroads and their Crosswords GPS were concerned about politicians who voted for trillions of dollars in debt and blank checks, and raising taxes, then how could they have ever supported the likes of Roy Blunt.  
Blunt, a/k/a Senator Earmark, was described by the Wall Street Journal as: "Mr. Blunt, who is 60, took no detours. His résumé includes his 10-year stint as a powerbroker during the party's previous House majority. He was right-hand man to former Majority Leader Tom DeLay and in his own right a powerful dispenser of patronage and influence. Mr. Blunt engineered tough votes for the 2003 prescription drug benefit and, in the last months of the Bush term, the financial bailout. He was an effective whip. To others, he epitomizes the transactional K Street politician who uses the prerogatives of office to protect incumbents—hence the nickname "Mr. Earmark."  See,  Time Magazine reports that the 2003 prescription drug benefit adds $1trillion to the deficit.  Blunt forgot to get it paid and just put it on the nation's credit card.  See,,9171,1919169,00.html.  And if TARP wasn't a blank check handed to President George W. Bush, then I don't know what a blank check is.
Of course Blunt never voted to increase taxes did he?  Well, if you followed the drama of H.R 4853 in the 111th Congress, then yes and no.  When that bill, about airports went to the Senate it got changed into renewing the Middle Class Tax Cuts. Those are the Bush-era tax cuts on the first $250,000 dollars of income on everyone.  Blunt voted no on that, voting to raise taxes on everyone.  Of course the bill went back to the Senate and the full Bush-era tax cuts were extended.  That was what Blunt voted for, adding another $4 trillion to $11 trillion+ to the deficit, depending on who you listen to and how you do the math.  That was roll call number 604 of the 111th Congress on December 12, 2010.
Of course the real reason American Crossroads d/b/a Crossroads GPS likes Blunt is because he is an avid advocate of the tax subsidies to Big Oil.  And taking the long view, American Crossroads knows that when enough Representatives and Senators owe the vitality of their political careers to them they will control the levers of patronage, graft, and extract unthinkable favors from thoughtless salons like Roy Blunt.
Imagine what the Missouri Senatorial campaign will look like when the Republicans find a candidate for 2012.

Tuesday, July 19, 2011


Reckless is defined by the folks at Merriam-Webster as "marked by lack of proper caution : careless of consequences" Radical Right-wing Republicans subscribing to the insanity of one Grover Norquist are poised to wreck the Republic.

Let's review.  Bill Clinton left the White House leaving the nation with a robust economy, and a budget surplus.  On week one of the Bush-Cheney administration Dick Cheney announced that we were heading into a time of economic downturn.  At the time I thought it odd, since in the tight race between Bush and Gore this was  not a campaign issue.

During Clinton's tenure America's economy grew at a rate of 4%.  Twenty-two million new jobs were created. Ninety-two per cent of those  jobs  were  created  by the private sector.  Median family  income  grew by more than $6,000 a year. Unemployment reached a thirty year low coming in at 4%.  Inflation dropped to 2.5% down from President George H.W. Bush's rate of 4.7%.  Americans had the highest rate of home ownership ever, 67.7 %.  Seven million fewer Americans lived in poverty. Clinton left President George W. Bush a budget surplus of $237 billion.  Clinton made the largest ever three year pay down on the debt, $363 billion.  Clinton cut the rate of government spending to 18% of GDP.  Clinton reduced the amount of money we pay for the interest on the Public Debt, down by $125 billion from the projected $348 billion. 

Here is something that sounds familiar.  President Clinton's Deficit Reduction Plan passed in  1993 without a single Republican vote.

Balancing the budget, while being responsible is a  Democratic idea, and Bill Clinton negotiated the Balanced Budget Agreement of 1997.  In his 1997 State of the Union address, President Clinton announced his plan to balance the budget for the first time in 27 years. Later that year, he signed the Balanced Budget Act of 1997, a major bipartisan agreement to eliminate the national budget deficit, create the conditions for economic growth, and invest in the education and health of our people. It provided middle-class tax relief with a $500 per child tax credit and the Hope Scholarship and Lifetime Learning tax credits for college. It also created the Children’s Health Insurance Program to serve up to 5 million children and made landmark investments in education initiatives including educational technology, charter schools, Head Start, and Pell Grants. Finally, it added 20 more Empowerment Zones and 20 more rural Enterprise Communities, included the President’s plan to revitalize the District of Columbia, and continued welfare reform though $3 billion in new resources to move welfare recipients to private-sector jobs.

Clinton dedicated the budget surplus to save  Social Security. George W. Bush used that money for his unpaid for tax cuts which disproportionately favor the top two per cent of wealthy Americans.

Clinton extended Medicare Solvency from 1999 to 2025.  When President Clinton took office, Medicare was expected to become insolvent in 1999, then only six years away. The 1993 deficit reduction act dedicated some of the taxes paid by Social Security beneficiaries to the Medicare Trust Fund and extended the life of Medicare by three years to 2002. Thanks to additional provisions to combat waste, fraud and abuse and bipartisan cooperation in the 1997 balanced budget agreement, Medicare was  expected to remain solvent until 2025.

President George W. Bush took the remarkable legacy of Bill Clinton's administration and ran it into the ground.  Unemployment under Bush went from 3.9% to 6.7%.  That rate including discouraged jobseekers went from 4.1% to 7.0%  The National Debt went from $5.7 trillion to $10 trillion. Bush squandered the $237 billion surplus, waged two wars off the books, drove unemployment to record heights.  As the economy melted down Dick Cheney went to the Senate and told Republican Senators that they had to bail out Wall Street with TARP because it was "Hoover Time."  Cheney was referencing the economic collapse that led to the Great Depression.

The  economic deregulation of Wall Street and the financial sector contributed to the economic meltdown of 2008, which was caused as the "result of high risk, complex financial products; undisclosed conflicts of interest; and the failure of regulators, the credit rating agencies, and the market itself to rein in the excesses of Wall Street," according to the Levin-Coburn report. 

Republicans would have us believe that all was hunky-dory when Bush left office and Obama took over.  Rather than be responsible and help turn  the economy around the Republicans have  fought for the interest of the rich and in concert to defeat Obama in the next election.  Republicans had enough Senators to block  any Democratic efforts in the first two years of the Obama administration.  The Democratic House sent measure after measure to stimulate job creation, provide money for education, and reform Wall Street.  Due to the Senate's filibuster rule most of those bills died in the Senate.  The ones that survived were  ghostly apparitions of the measures originally passed in the House.

Since the Republicans took control of the House they have produced no jobs bills.  They have voted to kill Medicare, slash funds for social programs, and voted to increase spending for the military.  They, following the maniacal rhetoric of Grover Norquist, refuse to raise any sort of revenue, whatsoever.

At this point we are not talking about the $237 billion surplus Clinton left to keep Social Security sound and solvent, which Bush used to give  back in tax cuts, and for which we are borrowing money to continue.  By the way that's when you know you have a revenue problem, when you are borrowing money (spending) to pay for tax cuts (which should be revenue).

What we are talking about is closing tax loopholes.  These loopholes let American business evade taxation.  These loopholes let American businesses send our good paying job overseas. 

Today we are talking about the debt ceiling. This does not create new spending.  This merely acknowledges that as we work our way out of the economic mess George W. Bush left for us we need to keep paying our bills.  There is  an argument that the bill is due primarily for Obama's economic stimulus.  That's nonsense.  Those who would not lift a hand to keep the economy going until the private sector recovers would have this nation thrown into another Great Depression.  Like their rhetoric that the stimulus failed, it is false.  America has turned the corner from job losses to job growth because of the stimulus.  We are not where  we want to be. We are going in the right direction.

Now the Republicans want to refuse to raise the debt ceiling. If that happens the world economy will collapse.  The hell of the economic meltdown of 2008 will look like a garden party.  There is a responsible way to work our nation out of the economic problems we face today. Not paying our bills is not a responsible way of moving forward.  Reckless Republicans are poised to ruin the Republic.

Tuesday, July 12, 2011


Congressional Republicans are flirting, en masse, with the crime of treason, as defined by 18 U.S.C. §2381.e
§ 2381. Treason
Whoever, owing allegiance to the United States, levies war against them or adheres to their enemies, giving them aid and comfort within the United States or elsewhere, is guilty of treason and shall suffer death, or shall be imprisoned not less than five years and fined under this title but not less than $10,000; and shall be incapable of holding any office under the United States.

"Adhering to the enemy" was put into historical perspective by Associate Justice Jackson in the landmark case Cramer v. United States.  "Treason of adherence to an enemy was old in the law. It consisted of breaking allegiance to one's own King by forming an attachment to his enemy. Its scope was comprehensive, its requirements indeterminate. It might be predicated on intellectual or emotional sympathy with the for, or merely lack of zeal in the cause of one's own country. That was not the kind of disloyalty the framers thought should constitute treason. They promptly accepted the proposal to restrict it to cases where also there was conduct which was 'giving them aid and comfort.'"(Emphasis added).

Jackson's opinion went on to adopt the English common law definition of giving aid and comfort to the enemy.  "'Aid and comfort' was defined by Lord Reading in the Casement trial comprehensively, as it should be, and yet probably with as much precision as the nature of the matter will permit: '... an act which strengthens or tends to strengthen the enemies of the King in the conduct of a war against the King, that is in law the giving of aid and comfort' and 'an act which weakens or tends to weaken the power of the King and of the country to resist or to attack the enemies of the King and the country ... is ... giving of aid and comfort.' Lord Reading explained it, as we think one must, in terms of an 'act.' It is not easy, if indeed possible, to think of a way in which 'aid and comfort' and be 'given' to an enemy except by some kind of action. Its very nature partakes of a deed or physical activity as opposed to a mental operation." (Emphasis added).
The treasonous act I am suggesting is the act of not raising the debt ceiling in time of war.  Lest we forget, America has troops on the ground fighting al Qaeda and the Taliban, principally in Afghanistan.  We are continuing in support of NATO's mission to deter the Libyan dictator.  Non-combat troops remain in Iraq.  The bottom line is that our troops are in harm's way now.

In February Secretary of State Hilary Clinton reminded us of the on-going threat from al Qaeda.  "First, our adversary. Despite heavy losses, the al-Qaida terrorists who attacked us on 9/11 retain dangerous capabilities. They continue to plot large-scale, catastrophic international attacks and to support and inspire regional affiliates. The United States and our allies remain their principal targets. Before 2001, al-Qaida was protected in Taliban-controlled Afghanistan. Al-Qaida and the Taliban, along with various associated groups, still maintain an alliance, based largely in the border region between Afghanistan and Pakistan. And the Taliban continue to wage a brutal insurgency against the government in Kabul in an effort to regain control of the country. The Taliban and al-Qaida are distinct groups with distinct aims, but they are both our adversaries and part of a syndicate of terror that must be broken" See,

"A text attributed to Al Qaeda military commander Sayf Al Adl released in May 2005 identifies three primary objectives for the September 11 attacks.  According to Al Adl, Al Qaeda’s “main objective” in perpetrating the September 11 attacks was to carry out a damaging strike against the United States in retaliation for its perceived aggression in the Islamic world." "Al Qaeda’s second objective, as identified by Al Adl, was to signal and support the “emergence of a new virtuous leadership” dedicated to opposing “the Zionist-Anglo-Saxon-Protestant coalition” that Al Qaeda blames for a litany of social and political ills in the Islamic world."  "The third and “ultimate objective,” according to Al Adl, “was to prompt [the United States] to come out of its hole.” Al Adl claims that Al Qaeda wanted to provoke the United States into attacking areas of the Islamic world associated with the organization and its affiliates. In doing so, Al Adl claims, Al Qaeda hoped to make it easier to attack elements of U.S. power and to build its “credibility in front of [the Islamic] nation and the beleaguered people of the world.”" See,
Now come the Congressional Republicans in steadfast refusal to raise the debt ceiling.  In case you don't know raising the debt ceiling is the way we authorize the payment of our debt.  It is not new spending.  The full faith and credit of the United States is at risk.  Congressional Republicans are willing to engage in the political tactics of wreck and ruin transforming America into a second rate nation.
If "adhering to the enemies" of the United States means to have a lack of zeal in the cause of one's own country and giving aid and comfort continues to mean doing an act which strengthens or tends to strengthen the enemies of the [America] in the conduct of a war against [America], that is in law the giving of aid and comfort' and 'an act which weakens or tends to weaken the power of [America] and of the country to resist or to attack the enemies of the ...  the country, then refusing to raise the debt ceiling is treason.
What will  happen if the United States does not raise the debt ceiling and defaults on our loans?  A partial government shutdown will take place.  In month one of this Congressional Republican Treason one tenth of America's GDP, $134 billion, will vanish.  America's securities will be devalued and sold like junk bonds.  Our troops may be stranded in active theaters of war. The dollar will radically lose value.  The price of  oil will  triple.  Forget about getting an education, surviving on Medicare, or getting paid back on Treasury Notes.  Forget about having a job or a home.  These Congressional Republicans are the architects of anarchy. We will go from recovering from a recession and be plunged into a depression.

Can you imagine anything that will make al Qaeda happier?  America will have to do what al Qaeda wanted in the first place, get out of Saudi Arabia.  America will no longer be a deterrent to radical Muslim extremism.  We will lose this War on Terror.  We will lose because Congressional Republicans care more about defeating President Obama than governing.  We will lose because Congressional Republicans will shirk from their duty to pay the bills America has already incurred.

Should the unthinkable happen, if the traitorous  Congressional Republicans refuse to raise the debt ceiling, and America stands at the  precipice of economic collapse then there is a Constitutional option.   The fourth section of the Fourteenth Amendment says the validity of the nation's public debt shall not be called into question.  This means that when Congressional Republicans abdicate their responsibility to We the People the President will  have to, by executive order, preserve the Union and direct the Treasury Department to continue.
Congressional Republicans will set new land speed records in appealing to the Federal Courts to rebuke Obama's usurpation of their authority.  They will wish they had moved so quickly to keep America's economy sound.  In all probability the Federal Courts will refuse to hear the Congressional Treasonous Republicans because the controversy at issue is a political question.