Believe It - Or Don't

I haven't posted anything for a few days because I've been (1) working, (2) dealing with stuff that isn't working but still has to be taken care of, and (3) trying to put together a coherent post that will serve as a follow-up to last months "The Rule of Law of Rule - Part the First: Freedom's Just Another Word for Nothin' Left To Lose."

Really, I'd wanted to have finished that post tonight and gotten it up.  There are many things I want, of course.  But as the Stones made clear, you can't always get what you want.  And neither can I.

Anyway, I really did want to be finishing that Rule of Law of Rule thing, but there's this actual work I have to do and then, anyway, my friend Kathy G sent along the news that this guy

was actually elected to office by the people of the Louisiana's 4th Congressional District.

That's not actually the news she sent.  The news she sent is that John Fleming (that's him in the picture), who happens now to be serving his second term as Congressman from Louisiana's 4th, is deeply concerned about the "Abortionplex" Planned Parenthood just opened in central Kansas.

The 900,000-square-foot facility has more than 2,000 rooms dedicated to the abortion procedure. The abundance of surgical space, Richards said, will ensure that women visiting the facility can be quickly fitted into stirrups without pausing to second-guess their decision or consider alternatives such as adoption. Hundreds of on-site counselors are also available to meet with clients free of charge and go over the many ways that carrying a child to term will burden them and very likely ruin their lives.

Here's a picture of the facility.

Here's a picture of Barak Obama's birth certificate.

Which of these is fake?

I don't know what Rep. Fleming would say about the birth certificate.  But we know what he thinks about the Abortionplex because he alerted his facebook faithful (another reason I'm not on facebook) to the horror.

So let's be clear.  If you, like Rep. Fleming, believe in an abortion facility complete with

coffee shops, bars, dozens of restaurants and retail outlets, a three-story nightclub, and a 10-screen multiplex theater—features intended not only to help clients relax, but to foster a sense of community and make abortion more of a social event,

you believe in fantasy.

The Abortionplex story (and therefore the photo of the facility) came from The Onion, a satirical paper.  You know, it makes shit up.  As in, it's not true.  It's a joke.

OK, maybe it wasn't Fleming himself.  Maybe he's got some junior (or senior) staffer keeping up his facebook pages.  So maybe he's not the gullible fool.  Maybe he just hires gullible fools.

Which is perhaps good for the dimwitted (they need work, too), but probably not great for the rest of us.

The real problem isn't Fleming (except to his constituents and to the people of the United States and the world).  The real problem is a willingness to believe stuff that has no relationship to reality and a refusal to accept evidence to the contrary (though the story about Fleming believing the abortionplex story says that he's "obviously deleted" his facebook post).

Which is, of course, why I chose the Obama birth certificate as the counterpart.  Because to birthers, any evidence that Obama was born in the USA is obviously as fake as an Onion story.  But I could have chosen, instead, this picture.

Which kind of makes the same point.

And did I mention, these folks are eligible to serve on juries?

BECAUSE YOU CAN NEVER BE TOO CAREFUL: The TSA Edition - or "Bomb? I don't remember seeing a bomb. Do you remember seeing a bomb? Oh, that bomb over there."

It was last February, you may remember, that a security contractor at a federal building in Detroit found a package outside and brought it in for safekeeping.  Tossed it in the lost and found.  Where it sat for a few weeks until someone thought to run it through the x-ray machine.

Then they called the bomb squad.

That was then.

This time it was guardians at LaGuardia.  TSA.  And these babies.

No, those aren't skillets on a stove.  They're plastic bins, the kind you stick the metal in before walking through the detectors.  Sitting on a radiator.

And those things in them?

They were in carry-on luggage.  Metal tubes.  With springs inside.  Carefully removed after screening because, well, you're not supposed to take pipe bombs onto a plane.

Philip Messing and Tim Perone had the story in (sorry) the New York Post.  They begin with the guy who found them.

“When I saw the image, I took a step backward and said, ‘What’s that?!’ ” one startled TSA employee said, according to police sources.
Another screener saw the objects, one gold, the other silver, and both 6-inches long with “springs” inside, and thought they could be bombs, the sources said.
The screeners promptly called their supervisor. He questioned the passenger, who claimed the pipes were for homeopathic medicine.
The supervisor bought the story and let the man board his flight without taking down any information, the sources said.

Because, really, what more might you want to know?

Anyhow, ever concerned for public safety, and not wanting to take any chances, they put the things into the plastic bins and set them on the radiator while they called the bomb squad went for lunch.

That was around 11:30.

It was about 3 o'clock when that same anonymous supervisor noticed the things still sitting on the radiator in the screening area and thought,

Holy shit! We could all be dead. CODE RED. Evacuate the place.  NOW!

Sorry, scratch that out.

But the supervisor, being a trained professional and all, thought

Hmm.  Maybe.

So he placed a call to the TSA bomb experts.  Who rushed right over.

Two hours later.

And they looked upon the tubes and thought,

Holy shit! We could all be dead. CODE RED. Evacuate the place.  NOW!

Sorry, scratch that.

But being trained professionals and all, they thought

Hmm.  Maybe.

So they called the Port Authority PD.  Who rushed right over.

And they looked upon the tubes and thought,

Holy shit! We could all be dead.  CODE RED.  Evacuate the place.  NOW!

Which they did.

Being trained professionals and all.

And then they took the tubes in the bomb truck to the police bomb range in the Bronx.

Six hours all told.

Until they blew up the homeopathic medical supplies.

Because you can never be too careful.

Feel safer now?

h/t Radley Balko

Since He Didn't Prove He's Innocent

Around 6 a.m. on November 21, 1990, Michael D. Webb poured gasoline around his house, even poured it on his sleeping, teenage daughters, then set the house on fire.  His three-year old son, Michael Patrick Webb, died in the blaze, of smoke inhalation.

Or maybe not.

Oh, that was the date.  The house did burn and the boy did die as a consequence. But whether Webb set the fire, that's more of a question.

The evidence:  He's a scoundrel and a philanderer.  He was in serious financial straits even after gutting his daughters' trust funds of $100,000.  He said some seriously troubling things that might support a claim that he did it.  There are a couple of his fingerprints in troubling spots.

And there's the report from the fire chief, Virgil Murphy, who investigated the fire, though his investigation wasn't based on science.  Murphy concluded that the fire was an arson, that had all the trailed gasoline "had ignited the chances of anybody escaping from that home were very, very slim."  And Murphy identified two places where, he said, the fire was started. Places that helped point a finger at Webb.

On the other hand, there's another suspect, one Webb and his lawyers claim wasn't adequately investigated by the police, and whose possible involvement, they say, was hidden by the prosecutors at the time of trial.

And there's an actual scientist, Gerald Hurst, one of the foremost arson scientists in the country.  Hurst said, simply, that Murphy's claim about where the fire started has no basis.  It's not that it couldn't have been started in those spots.  It's just that there's no reason to think it did.

Recommend LWOP, death in prison, said his lawyers.  That'll give him the time to try and get a new trial and a chance to be found not guilty.

Unless you're the Parole Board.  Since Hurst can't say that Murphy's guess about where the fire started was wrong, surely it was right.  After all, if science can't answer the question definitively, then the non-scientific answer must be right.

And there was all that other evidence.

And Webb sure seemed like a sleazebag when the Board interviewed him.

And he's still claiming to be innocent, which means he doesn't admit he's guilty, which he obviously is, so he's not just a sleazebag but a lying sleazebag.

Unless, of course, he actually didn't do it. Recommend LWOP, death in prison, said his lawyers.  That'll give him the time to try and get a new trial and a chance to be found not guilty.

But

Given the overwhelming evidence of guilt, there is no manifest injustice in this case that would warrant the grant of executive clemency.

I don't imagine anyone involved (except maybe Webb, though maybe not) was surprised.

And you know, there's nothing new here.  The Parole Board is no different from the local prosecutors.  Convicted guy wants a chance to prove he's not guilty?  Do whatever you can to stop that.

Because it's really important to not know.*

Unless, of course, he's proved that he didn't do it.  That old "manifest injustice."

There's also this.  Webb's death sentence is pretty much indefinitely stayed. It looks like he's got at least a couple of years to prove his case.

And of course, he's 63 now, which means time's maybe getting short even without the impending murder.

Michael Webb Clemency Report

-----------------

*See Andrew Cohen's "Is Ohio Keeping Another Innocent Man on Death Row?" in The Atlantic.  It's about Tyrone Noling, who I've written about here and here. 

Here's the tag line to Cohen's piece.

Instead of searching for the truth, the state is going to absurd lengths to defend a dubious death sentence.

Which is, as I said, the norm rather than the exception.  Because, after all, why would we even want to know?

The 

Kissing Your Sister

This is not a post about incest.  It's not about sex at all.

Sorry.  No.

This is about the runaway grand jury in Houston. The one that instead of doing the prosecutor's bidding by investigating the folks who blew the whistle on the Houston PD's unreliable mobile breath testing vans (and screwing up DUI prosecutions) decided to investigate the prosecutors.

Well, they're done now.

And you'll be shocked to know that they didn't bring any charges.

As Paul Kennedy explains, that's really no surprise.  The investigation seemed to focus on whether Pat Lykos and her minions hid evidence about just how worthless the Batmobiles were from the defense in DUI cases.  But while a prosecutor who hides favorable evidence from the defense is violating the Constitution, the violation isn't a crime.  It's mostly not even an actionable tort.

But golly, the grand jury wasn't happy.

Brian Rogers in the Houston Chronicle.

A Harris County grand jury ended its session Tuesday, ending a months-long investigation into the district attorney's office and the Houston Police Department's DWI testing vehicles with a blistering report, but no indictments.

"There was no evidence of a crime," said grand jury foreman Trisha Pollard.

Pollard signed off on a one-page report blasting the DA's office for "unexpected resistance" and accusing the office of launching an investigation into the grand jurors, the special prosecutors and judges.

The grand jury also harshly criticized Rachel Palmer, a prosecutor who invoked her fifth amendment right to refuse to testify.

Ah, yes. Blast the office. Criticize harshly. Wag a finger.

Probably, in this case, that's all that's legally possible.  But still, it's unsatisfying.

Coitus interruptus. (Nope, still not about sex.)

* * * * *

I stood, one day, in the well of the court of appeals.  I had a substantive issue in the case, but that's not what the judges wanted to talk about and when you stand before the berobed ones who are asking questions about your case, well, you answer them.  You try to get back to your subject, but ultimately they're in charge, however much you insist on owning the stage, it's their theater.

Anyway, there I stood answering questions about an obviously improper practice of ex parte electioneering communication between judge and jurors.  Everyone knows the judges do it.  Everyone who thinks about it, knows they shouldn't.  And everyone knows that it makes no difference in the outcome of more than perhaps one trial every couple of decades.  If that much.

Because of an oddity in the record of my case, I was able to complain about it on appeal.  I couldn't show it hurt my client, but as a side issue, I figured it would give the court of appeals a chance to stop an impropriety.

But what can we do? the judges wondered.

We know it's wrong, and they should stop, but there's no harm to your client?

Do what you do all the time.  Explain that it's error but harmless.  At least they'll have been admonished, slapped down, told to knock it off.  It may not make them stop, but it might.

But we can't say it's error if it didn't prejudice your client.

What?  You do that all the time.  

But we can't do that.

Yes, of course you can, Your Honorably Confused Ones.

And the opinion came out.  And they never even addressed the damn thing.  And the practice continues unabated, a decade or more later.  And everyone who thinks about it still knows it's wrong.

Really, it probably wouldn't have changed anything if they said it was harmless error.

Judges and prosecutors tend to take that as vindication, not admonishment.  But still.

* * * * *

And the Civil Rights Division of the Department of Justice looked down upon Sheriff Joe after years of investigating and said

Golly, gee.  The old coot doesn't like Hispanics.

Dearie.  He should be nicer to them.

Bad boy, Joe.

Please clean up your act.

Pretty please.

And I mean, they actually could have sued instead of just issuing a report.  Even if there was a press conference, too.  As Scott Greenfield noted at the time,

If Crazy Joe could have paid for a report from the current administration that would establish, for all the time, his imperial hegemony, this would have been it. Merry Christmas, Joe. Love, Barack.

* * * * *

That runaway grand jury?  Here, courtesy of Murray Newman, is what they said.

To:  The Honorable Susan Brown, 185th State District Court
From:  Foreman, 185th Grand Jury, Harris County
DATE:  January 31, 2012
RE:  Our Grand Jury Service

The members of this Grand Jury are honored to have had the opportunity to serve as Grand Jurors for the August 2011 Term, extended to February 1, 2012 for the HPD Mobile B.A.T. Vans investigation.  The privilege to serve the outstanding citizens of Harris County by participating in the determination of probable cause in felony cases and in an investigation is a unique experience essential to the administration of the criminal justice system, and we actively encore other citizens to volunteer for Grand Jury service.

Our attempts to initiate our investigation were met with unexpected resistance from persons in the Harris County District Attorney's Office (HCDAO).  Nothing prepared us for the events that unfolded, some of which are documented in motions filed by the HCDAO and some are in the public domain.  In the days prior to the Court's ruling authorizing the attorneys pro ten to aid in our investigation, an investigator and other senior members of the HCDAO were observed in the hallway outside our Grand Jury meeting room;  we were unable to determine whether this was an effort to track the traffic of witnesses or for purposes of intimidating members of the Grand Jury.  One day while walking on a sidewalk returning from lunch break, some Grand Jury members were photographed by an unknown person in what appeared to be a government issued vehicle, again for an unknown purpose.  We discovered through our investigator that the HCDAO initiated investigations into members of the Grand Jury, the attorneys pro ten and past and present members of the Harris County Judiciary.

Our investigation was distracted by the Assistant District Attorney most responsible for the prosecution of DWI cases invoking her Fifth Amendment right against self-incrimination (publicly reported).  To be perfectly clear, we know the ADA had the right to invoke the Fifth Amendment, but we are deeply troubled that any prosecutor would fear prosecution from a Grand Jury investigation.  The stain upon the HCDAO will remain regardless of any media statements issued or press conferences performed by anyone.

The ultimate standard for prosecutors much be much more than mere obedience to the law; it must be conduct which constantly reaffirms one's fitness for the responsibility and continuously furthers the belief that a DAO exists to ensure an even-handed administration of justice.  Conduct which casts public discredit on the office of the HCDAO as well as on the administration of justice is unacceptable.  While we appreciate the fine line between ethics and the law, our investigation was unable to determine that any criminal conduct had occurred.  But it is clear that the work of this Grand Jury has already resulted in some positive changes in the enforcement of DWIs in Harris County, as the HPD B.A.T. vans are being phased out.  Again, we thank you for the privilege to serve our County.

And that probably really is all they could do.  And damned good for them to do that much.

But do they really believe what they said about the stain?  You know, this.

The stain upon the HCDAO will remain regardless of any media statements issued or press conferences performed by anyone.

Really? 

To those like Lykos, the failure to indict isn't merely grounds for a sigh of relief.  It's hard proof of virginal innocence and a conspiracy.  Brian Rogers again, different story.

At a news conference Tuesday, Lykos lashed out at the report and scolded the grand jury.

"This politically motivated investigation, I would submit to you, is an outrage," Lykos said. "It's an abuse of power and a corruption of the criminal justice system. For months our office has been hounded, and there have been a torrent of grand jury leaks."

And that stain?

"If there is a stain, it is on the people who demagogued this office," she said. "That stain is indelible and, like Lady Macbeth, they will never be able to wipe that spot out."

The truth is that if there's a stain, it rinses away without a trace.
Not Lady Macbeth's crime-induced madness.

Doctor

What is it she does now? Look, how she rubs her hands.

Gentlewoman

It is an accustomed action with her, to seem thus
washing her hands: I have known her continue in
this a quarter of an hour.

LADY MACBETH

Yet here's a spot.

Doctor

Hark! she speaks: I will set down what comes from
her, to satisfy my remembrance the more strongly.

LADY MACBETH

Out, damned spot! out, I say!--One: two: why,
then, 'tis time to do't.--Hell is murky!--Fie, my
lord, fie! a soldier, and afeard? What need we
fear who knows it, when none can call our power to
account?--Yet who would have thought the old man
to have had so much blood in him.

Doctor

Do you mark that?

LADY MACBETH

The thane of Fife had a wife: where is she now?--
What, will these hands ne'er be clean?--No more o'
that, my lord, no more o' that: you mar all with
this starting.

Doctor

Go to, go to; you have known what you should not.

Gentlewoman

She has spoke what she should not, I am sure of
that: heaven knows what she has known.

LADY MACBETH

Here's the smell of the blood still: all the
perfumes of Arabia will not sweeten this little
hand. Oh, oh, oh!

Doctor

What a sigh is there! The heart is sorely charged.

Gentlewoman

I would not have such a heart in my bosom for the
dignity of the whole body.

Doctor

Well, well, well,--

Gentlewoman

Pray God it be, sir.

Doctor

This disease is beyond my practise: yet I have known
those which have walked in their sleep who have died
holily in their beds.

LADY MACBETH

Wash your hands, put on your nightgown; look not so
pale.--I tell you yet again, Banquo's buried; he
cannot come out on's grave.

But Macbeth's exhausted fatalism.

To-morrow, and to-morrow, and to-morrow,
Creeps in this petty pace from day to day
To the last syllable of recorded time,
And all our yesterdays have lighted fools
The way to dusty death. Out, out, brief candle!
Life's but a walking shadow, a poor player
That struts and frets his hour upon the stage
And then is heard no more: it is a tale
Told by an idiot, full of sound and fury,
Signifying nothing.

On a Sun-Kissed Island - Where We Tortured People

This is what you think of first.

Or maybe this.

 

But there's also this.

And this.

And of course, there's this.

All of it is Guantánamo Bay.

• Torture chamber.
• Prison camp.
• Caribbean port.
• Naval Base.

And oh, yeah, there's also this.

Because, of course, Guantánamo Bay, and our naval base there, is part of Cuba.

After the Spanish American War, when we wrested as spoils Puerto Rico and Hawaii and Guam and the Phillipines, we allowed Cuba a narrowly circumscribed autonomy, turning it into something of a vassal state.  Really, a colony.  And we made Guantánamo ours.

Sometimes sleepy, sometimes volatile, sometimes prison camp.

But ours.  For better or worse.

Before Castro, when the Bay (and the base) was part of our Cuban fiefdom.

After Castro, when the Kennedy administration considered plans to make him invade the base (or appear to - in a weird preview of what the Johnson administration would do with the Gulf of Tonkin Incident - so we'd have an excuse to invade.

Lately, of course, it's been for worse.

January 11 marked the 10 year anniversary of the opening of Camp X-Ray, the day the first prisoners (more delicately called "detainees") arrived at the concentration camp.  But we'd been there for 100 years by then.  And we'd detained and kept behind concertina wire tens of thousands of people who'd done nothing wrong.  And we tortured them.

We'd thought for decades that our base in Guantánamo Bay was a place that no law could reach.  It was part of Cuba, but Cuba had no authority.  But it was part of Cuba, so our courts had no authority.  Or so we believed.  And so the courts had mostly ended up agreeing.

So, really, if you want to hold prisoners without having to justify it. And if you want to torture them without anybody looking over your shoulder.  And if you want to keep them without due process or lawyers or courts or reporters.  And if you want to carefully circumscribe the whole damn thing.  

A naval base that we absolutely control on an island in the middle of the Caribbean that is a country that we treat as an enemy.

Really, what could be better?  Just ask John Yoo.  But he came late to the game that began decades ago.

There are some really good, seriously troubling books about what we've done at Gitmo in the last 10 years.  For reportage, there's Jane Mayer's The Dark Side: The Inside Story of How the War on Terror Turned into a War on American Ideals.  From lawyers who represented the prisoners, there's Joseph Margulies's Guantánamo and the Abuse of Presidential Power and Clive Stafford Smith's Eight O'Clock Ferry to the Windward Side: Seeking Justice in Guantánamo Bay.  From the officers stationed there, there's James Yee's For God and Country: Faith and Patriotism under Fire and Erik Saar's Insided the Wire: A Military Intelligence Soldier's Eyewitness Account of Life at Guantánamo.  Many others, too.

But they're books of a decade.  There's no shortage of context, but it's the context of permanent war on a tactic, of the Shrub administration's enthusiastic abandonment of any respect for civil liberties because we'll give up all our liberty to preserve our liberty.

Except, again, it wasn't just Bush II.

It was Bush I.  And Clinton.  And Eisenhower.  And Kennedy.  And Nixon.  And - you get the idea.

And our involvement in Guantánamo, it turns out, goes back at least as far as Lawrence Washington, half brother to George.

You don't learn all of that from the daily papers (or the Daily Show), or from any of those books I mentioned before, good as they are.  To get the history and the historical context, to see how what we've done at Guantánamo isn't an artifact only of an administration committed to the proposition that, as Condoleezza Rice said, echoing Tricky Dick (which really should have been a clue), 

When the president does it, that means it is not illegal.

And it's racism writ broad and deep and ingrained in a faux Donna Reed Show world.

For that understanding, and for the downright interesting details that go with it, you have to turn to Jonathan M. Hansen's terrific new book, Guantánamo: An American History.  (Note to the Feds: A gift from my son, not the publisher or author or a bookseller.)

Where else will you read the story of Charles Ryan.  He was 19 when his father was posted to Guantánamo, and went along.  But while living on the base, he came to join the Cuban resistance, smuggling guns and ammunition and along with two friends from the base joining Fidel Castro and the revolutionaries in their hideout in the Sierra Maestra mountains?

And where else will you get the context?

Here's Hansen, on part of the book's website.

After centuries, literally, of salivating over Cuba and Guantanamo Bay, we took the bay from newly independent Cuba, forcing the initial lease down Cuba’s throat. We exploited the bay to promote US commercial interests in Cuba over the interest of, especially black Cubans, settled in southeast Cuba; during the Cold War, we contemplated and sometimes launched secret and illegal operations against the Cuban government from Guantanamo Bay.
In short, the history of Guantanamo Bay reveals the complexity, the ambiguity of American history and refutes the idea that America had any grace to fall from. Grace has never been what nation-making is about, not American nation-making, not anybody else’s, notwithstanding the nation’s many acts of generosity and its noble founding principles.
I want to be crystal clear about this: those principles were, from the very beginning, shot through with paradox and contradiction, and Guantanamo’s history enables us to see this paradox in stark relief. Focus solely on recent political and legal decisions taken at or about Guantanamo does not begin to get at that complexity.
From the vantage point of history, in other words, post 9/11 Guantanamo is not a freakish departure from American history. Guantanamo out Americas America, in sociological, cultural, political, and legal ways. Guantanamo is part of who we are. 

All of which goes some to explain just why it is that for all his promises and commitments to shut down Gitmo, His Barakness is no more willing or able to do it than Shrub.  And if the formal torture stopped there - and it apparently did well before the end of the Bush presidency - Obama has stridently resisted efforts to examine who did and what they did and certainly to hold anyone accountable.  But he did say that he knows we treated Bradley Manning just fine because his captors said so.

Because in Cuba, and really, throughout this great land and frankly the rest of the world, the more things change, the more they stay the same.  The past really is prologue.

Hansen helps us see that.

Naturally

Frankly, this isn't the post I wanted to write.  There's a whole bunch of criminal law stuff and capital stuff.  Maybe too much.

But then they held a birther hearing in Georgia.

You'll recall that earlier this month, administrative law judge (as opposed to a regular trial judge) Michael M. Malihi refused to dismiss a challenge to putting President Obama's name on the ballot for the Georgia Democratic primary.

The birthers' immediate claim was that Obama wasn't that Obama wasn't born here.  They passed on that for this round (or at least the early parts of it).  Rather, they said that since his father wasn't a citizen, Obama couldn't be a "natural born citizen."  The claim isn't frivolous on its face, but the further claim, that clear and binding Supreme Court precedent (Minor v. Happersett) says that is, simply false.  Minor says no such thing.  And what it does say that's marginally relevant isn't binding precedent. Obama's lawyers responded with a motion to dismiss that both ignored the substance of the birthers' argument and provided no even vaguely credible reason to dismiss the case. 

So there was a hearing last week.

Obama was subpoenaed.  The birthers were giddy.

Now he'll have to come and be questioned under oath and he'll have to admit that he's a fraud and a Kenyan muslim terrorist or something.

Really, they thought that. Especially when the judge refused to quash the subpoena.

Except Obama didn't show.  Neither did his lawyers.

Mark Niesse, for the Fulton County Daily Report.

On Thursday, nearly 100 people, many of them "birthers" who doubt Obama's legitimacy, crowded the courtroom for the 90-minute trial-like hearing. Seats reserved for Obama's defense team remained empty.
Birther leader Orly Taitz, a California attorney representing a Georgia voter challenging Obama's qualifications for the office he holds, questioned witnesses about document forgery and told Malihi she didn't believe Obama's birth certificate or Social Security number were legitimate."This man is just making a joke out of this country. He's showing tremendous disrespect to the whole nation," Taitz said after the hearing. "Mr. Obama had an opportunity to appear here and show valid documents, certified docs, with embossed seals. … He chose to present nothing, which shows that he has nothing. He does not have any valid documents."

Of course, the argument wasn't supposed to be about the documents.  And the President's failure to appear doesn't mean that he couldn't have presented compelling evidence had he been so inclined. Then again, logical argument has never been key to the birther movement which rests largely on the conviction that whatever isn't proved to their satisfaction is ineluctably false.  And by god, they believe Obama wasn't born here and any evidence to the contrary is, necessarily, fabricated.

The open question, of course, is whether it was wise for Obama's lawyers to boycott the hearing.

Sure, it would be a circus if they showed up.  (Not Obama, there was no way he'd attend, but his lawyers.)  And boycotting is kind of like refusing to negotiate with terrorists.  To negotiate appear is to seem weak, and to dignify the proceedings.

But not showing up creates its own sort of circus.  And perhaps concedes the chance actually to rebut the claims with relevant argument and evidence that could lead to a judicial determination that Obama is actually qualified to be President - something that all those courts saying the question hasn't been (and maybe can't be) properly raised haven't provided.

On the other hand, they could show up and still lose.  Which would really be a mess.

When I tell people that the answer to every legal question is "It depends," that's true of every tactical decision, too.

No decision yet from Judge Malihi whose opinion is only advisory, anyway.  The actual ruling on ballot access will be made by the Georgia Secretary of State, Brian Kemp.

Kemp, by the way, could have shut the hearing down.  Obama's people asked him to.  In a letter to Michael Jablonski, Obama's lawyer, Kemp declined.  Then he issued a warning.

[I]f you and your client choose to suspend your participation in the OSAH proceedings, please understand that you do so at your own peril.

You pays your money and you takes your chances.

Another Month with No Killing

They won't be killing Michael Webb next month.  In fact, they won't be killing anyone.

Mike DeWine, Ohio's Attorney General, personally told Judge Frost that the state wouldn't object to Webb's motion.

Frankly, it's hard to imagine that he had much choice (except to let a flunky do it for him; good for DeWine to suck it up and do it himself).  I mean, it's not like anything's changed in the two weeks since the 6th Circuit upheld the injunction against killing Charles Lorraine

because the State cannot be trusted.

And since nothing's changed, well then, you gotta figure that Frost was gonna grant the injunction and the 6th would uphold it no matter what.

Of course, DeWine's trying to get the the Lorraine stay lifted by the berobed one's in the nations capital.  On Friday he submitted an application to vacate that stay to the former Generalissima, Elena Kagan, who's the Justice assigned to the 6th Circuit.  Lorraine's lawyers have until Tuesday to respond.  But even if they get the stay lifted, that won't get Lorraine killed.  Given the current schedule of killings, he's probably got until sometime in 2014 at a minimum.  (Though March and May of this year are still open, for reasons that never seemed clear.)  More to the immediate point, the uncertainty and the near certainty that Webb would get a stay and it would stand up at least for a bit - well, enough.

Besides, as Alan Johnson wrote in the Columbus Dispatch, DeWine won't settle for half measures.

“We felt we had no choice,” DeWine said in an interview. “We’re not going to carry out another execution without it being perfect.”

He said the Department of Rehabilitation and Correction has made “great progress” in refining lethal injection procedures, “but we’re not quite done with that.” 

Perfect.

Wow.

I mean, I guess we know they're not done aiming for perfection because they just abandoned their carefully worked out and (according to Judge Frost) perfectly constitutional protocol in mid-stream while killing Reginald Brooks.  You know, so they could do it better.

DeWine, of course, still claims that the protocol is constitutional.  And presumably he still has the judge's agreement.  Maybe now he understands that there's also a constitutional mandate to follow the protocol.  But I doubt it, since his claim remains that while they keep adjusting the protocol on the fly, in mid-murder as it were, they're doing that to make a terrific protocol into a perfect one and gee, the only question is whether the one they ignore is constitutional, which it is.

Yes, I know that's confusing.  So is their position.

But the bottom line is clear.  No murder in February.  Webb gets his stay.

Because there's the Rule of Law.  And even if DeWine just thinks it's a Law of Judicial Rule, he's willing to obey.