Sooners Scared of Sharia

It’s just about the most ridiculous thing I’ve seen. Oklahoma voters overwhelmingly approved a measure to ban courts in the state from considering Islamic sharia law when considering cases. It also forbids courts to look to the legal precepts of other nations or consider international law when deciding cases.  Each of these provisions is so idiotic that I don’t even know where to start.

State Question 755 (ominously called the Save Our State Amendment) added this to the Oklahoma Constitution (italics mine):

The Courts…when exercising their judicial authority, shall uphold and adhere to the law as provided in the United States Constitution, the Oklahoma Constitution, the United States Code, federal regulations promulgated pursuant thereto, established common law, the Oklahoma Statutes and rules promulgated pursuant thereto, and if necessary the law of another state of the United States provided the law of the other state does not include Sharia Law, in making judicial decisions. The courts shall not look to the legal precepts of other nations or cultures. Specifically, the courts shall not consider international or Sharia Law. The provisions of this subsection shall apply to all cases before the respective courts including, but not limited to, cases of first impression.

This whole thing started because an Oklahoma state representative heard about a case in New Jersey where a trial judge ruled against a woman seeking a restraining order because her husband was acting on his religious beliefs. The trial judge was promptly reversed by an appellate court, but the matter did not even involved sharia. In the New Jersey case, the trial judge did not say that since sharia allows the husband to force himself on his wife, he is entitled to do so. The trial judge said that the man’s sincere religious belief prevented him from forming the necessary mens rea to constitute marital rape. The judge was wrong and justice prevailed.

Another sponsor of the measure fretted because England has embraced 85 sharia courts, “while Oklahoma is still able to defend itself against this sort of hideous invasion, we should do so.” The only problem is that England has not embraced 85 sharia courts. England has 85 sharia courts (or at least the Daily Mail tells us so), but that’s like saying Oklahoma has 111 Rotary Clubs. Has Oklahoma embraced the Rotary Clubs?  Are Oklahoma courts bound to consider the decisions of Rotary Clubs which have hideously invaded the state, unless a constitutional amendment is passed?

People can voluntarily be a part of any organization. The only thing the sharia courts offer that is different is a forum for alternative dispute resolution. ADR is an increasingly popular thing. The idea is that litigants can chose a mediator or arbitrator to help them settle their differences. This saves the courts time and the parties money. Often lots of money. If both of the litigants are Muslims, there is no reason they cannot choose to have a dispute abitrated by other Muslims. If it is a matter which requires court approval, they can then enter a consent order with the court. As long as the agreement between the parties is consistent with the law, the court will usually approve the order. That is what some courts in England have done with sharia court decisions.

But this is nothing new. Courts in both England and the United States have often approved consent orders that are the results of beth din rulings. A beth din is the equivalent of a sharia court for Orthodox Jews. If both parties are Orthodox Jews and want to have their dispute settled in accordance with Jewish law, they come before the beth din judges following accepted rules of legal procedure and the judges decide the case, which is then submitted to the state court, particularly in family law cases. Perhaps someone needs to amend the Oklahoma amendment to forbid the consideration of Jewish law, in case there is an invasion of Orthodox Jews into the Sooner State.

But here’s the kicker. Muslims who submit their disputes to a sharia court and Jews who submit their disputes to a beth din are only doing what Christians should have been doing. Most Christians ignore the first half of I Corinthians chapter 6. I’ll just quote the first verse to refresh your memory and you can go read the rest: “Dare any of you, having a matter against another, go to law before the unrighteous, and not before the saints?”

But what about this “The courts shall not look to the legal precepts of other nations or cultures” bit? This is very interesting. Let’s look at it in reverse order. What is another culture? Clearly for the authors of the proposal, it is any culture where Islam is the dominant religion. But that’s not what the amendment says. And what constitutes a “legal precept” of that culture?

But it’s that “other nations” bit that will cause an interesting problem. The whole idea of the common law and the rules by which it operates did not originate in the United States. They come from England, which is, according to my red passport, another nation. Having lived within it for over a decade, I can assure you that it is another culture as well. It is fortunate that Oklahoma, unlike its neighbors Texas and New Mexico, is not a community property state, because it would then be looking to the legal precepts of Spanish law as well. Nonetheless, it appears that the authors (and is must be said, 70% of Oklahoma voters) imagine that American law just sprang up sua sponte.

And finally there is that bit about international law. This is bizarre because regardless of the amendment, Oklahoma courts will have to consider international law. Treaties to which the United States is a party are the supreme law of the land. So says Article VI Section 1 of the US Constitution. Treaties to which the United States is not a party are irrelevant and would never be considered by a court in Oklahoma. The relevance of international law is a federal matter, because only the federal government has any legal interaction with other countries.

State Question 755 was written by ignorant people to be voted upon by ignorant people.  Somehow a lot of people see the words “Islam” or  “Muslim” and their brain function just shuts off. Muslims are bad, so if something is against Muslims it must be good. It doesn’t have to be good law or even make logical sense. It will probably do something to help stop the great Muslims invasion (they must be massed at Fort Smith and Siloam Springs just waiting to pour over the border) and that’s all that matters.

Lord, save us from ourselves.

What the Arizona Court Order Actually Says

There seems to be some confusion about the prelimiary injunction ordered by U.S. District Judge Susan Bolton with regard to Arizona Senate Bill 1070. Reading both the press and the blogs, there are misunderstandings, misconstructions, oversimplifications, and lots of rhetoric, especially wondering how the judge could rule this way when (they presume) the Arizona law mimics federal law. I have read the court order and this is my legal – not political – analysis:

The judge started off by explaning which provisions of the statute are being enjoined from enforcement and which are not. Almost all of the statute stands and is enforceable pending trial on the merits. Four narrow provisions are temporarily enjoined. She concludes this section by stating the legal basis of the injunction, viz., that the moving party is likely to succeed on the merits with regard to those provisions when the case is tried and the moving party would suffer irreparable harm if the court does not provide preliminary relief, as well as the tests of the balance of equities and public interest. This is the same standard used in any case.

In the next section, the judge provides a good overview of federal immigration law that is worthy of reading by a lot of people here and on other blogs who seemed to be confused by it. There is a good overview of the relevant portions of SB 1070.

The judge then gives a good explanation of why she cannot and will not enjoin all of SB 1070 as the Government moved.

Addressing each provision, she starts with Section 2(B), which does not mimic any federal law, but says that if someone who is stopped, detained, or arrested is suspected of being an unauthorized alien they have to have their immigration status determined before they are released. This places a substantial burden on both citizens and lawful aliens (citing Hines v. Davidowitz), as well as a burden on federal resources (citing Buckman Co. v. Plaintiffs’ Legal Comm.) forcing reallocation of resources from higher priorities directly related to national security. The judge then footnoted the possible 4th Amendment issues, but did not use them as the basis of her ruling.

With regard to Section 3, this also does not mimic federal law, but rather creates a separate state offense with state penalties for violating a federal law. This runs contrary to Hines in several ways as clearly set out. Not really a shocker. Preemption is pretty obvious and success at trial very likely.

With regard to their Section 4 challenge, the Government is not likely to succeed, because they are seeking to enjoin a section of the statute that was amended by Section 4 of SB 1070 but not the actual change brought about by Section 4. No injunction.

The injunction with regard to Section 5 involves the portion that criminalizes unauthorized aliens who attempt to get work or actually work. Again, this does not mimic federal law. Congress specifically did not impose criminal or civil penalties on employees when it chose to do so on employers. The judge ruled that because the Arizona statute conflicts with a comprehensive federal scheme, it is preempted.

The Government attempted two further injunctions with regard to Section 5 but did not succeed.

Section 6 of SB 1070 does not mimic federal law and provides that an officer may arrest a person without a warrant if the officer has probable cause to believe that “the person to be arrested has committed any public offense that makes the person removable from the United States.” This would include any offense that might have been committed at any time outside of Arizona. The judge cites Justice Alito in Padilla v. Kentucky:

providing advice on whether a conviction for a particular offense will make an alien removable is often quite complex. “Most crimes affecting immigration status are not specifically mentioned by the [Immigration and Nationality Act (INA)], but instead fall under a broad category of crimes such as crimes involving moral turpitude or aggravated felonies.” M. Garcia & L. Eig, CRS Report for Congress, Immigration Consequences of Criminal Activity (Sept. 20, 2006) (summary) (emphasis in original). As has been widely acknowledged, determining whether a particular crime is an “aggravated felony” or a “crime involving moral turpitude [(CIMT)]” is not an easy task.

As a result or this and the fact that it would also require Arizona officers to make judgments with regard to non-Arizona statutes, Judge Bolton ruled:

Considering the substantial complexity in determining whether a particular public offense makes an alien removable from the United States and the fact that this determination is ultimately made by federal judges, there is a substantial likelihood that officers will wrongfully arrest legal resident aliens under the new A.R.S. § 13-3883(A)(5). By enforcing this statute, Arizona would impose a “distinct, unusual and extraordinary” burden on legal resident aliens that only the federal government has the authority to impose. Hines, 312 U.S. at 65-66.

The judge concluded her order with a detailed explanation of how the provisions she enjoined meet the standards for injunctive relief. This is set out in a clear and reasonable way.

Judge Bolton’s ruling may not be popular, especially in Arizona. That is part of the separation of powers. It is not a judge’s job to do the popular thing. That is why federal judges are not elected. The rule of law and the current will of the people may not be the same thing.  Judge Bolton did not rule in any activist way. She did not bend to the will of the Obama Administration.

If you wish to substantively disagree with my legal analysis, or make other substantive comments, feel free to do so.

The Power of Unforgiveness

It is the story that just won’t go away. Jon Venables, one of the killers of Jamie Bulger, was returned to prison for violating the terms of his license. Venables was 10 years old 17 years ago when he committed this crime. He was allowed out of prison after eight years, after appealing to the European Court of Human Rights, which said you can’t lock up 10 year olds forever.

Other than the media, the person who comes out looking the the worst in all of this is Denise Fergus, the mother of Jamie Bulger. She is constantly demanding that she has a right to know the details of what Jon Venables has done to get his parole revoked. Now she has demanded that Maggie Atkinson, the Children’s Commissioner for England be sacked. Fergus didn’t like the way Atkinson referred to Jamie’s murder, and worst of all Atkinson opined that the age of criminal responsibility be raised from 10 to at least 12 and that Jamie’s killers should not have been tried in adult court.

I don’t make it a habit of agreeing with the Government or their appointees. There are arguments to be made for and against Atkinson’s views. But who is Denise Fergus to demand that someone agree with her or be sacked? She honestly seems to believe that she should hold the fate of her sons killers in her own hands and that she should decide the fate of anyone who dares disagree with her.

She has demanded that the Justice Secretary reveal why Venables has been recalled to prison. Under unrelenting pressure from the media, Jack Straw agreed to meet with her, but wouldn’t tell her why Venables was back in prison. First of all, it is none of her business, and second, once he were to tell her, she would tell the world and jeopardise the course of justice.

Fergus will want to make a statement to the parole board when Venables is referred to them. What’s the point? Whatever Venables has done to have his parole revoked is entirely unrelated to the murder of Jamie Bulger 17 years ago. It is as if she believes she can reduce her pain by puting a little more of it onto Venables. Sadly for her, it just doesn’t work that way.

Denise Fergus is an example of the power of unforgiveness. She is the one who has been eaten alive by it all these years. Her knowledge of what Jon Venables may have done recently will not bring Jamie back. Her opinion regarding any new offence he may have committed will not bring Jamie back. Her participation in the process will not protect anyone in the future.

The same is true of the British media and the public. Just leave it all alone. It was sad. It was tragic. It was 17  years ago. Move along, people. There’s nothing to see here.

Show Trial for a Scapegoat

The kangaroo court in Munich is now in session. John Demjanjuk, 89, in a wheelchair, half-conscious, and with no eye-witnesses testifying against him, is on trial in Germany for crimes alleged to have happened in Poland 66 years ago.

The chief question is whether the German state, in an illegal invasion of Poland, captured Demjanjuk and forced him to become a guard at Sobibor concentration camp. It is not the German state that is on trial, or even any Germans. It is not even alleged that Demjanjuk killed anyone. All of the 27,900 counts against him are for accessory to murder. By being a guard at the camp, he kept people from escaping so that Germans could kill them – in Poland, of which he is neither a citizen nor has he ever lived other than under the control of the German army.

The German are really grasping at straws to find non-Germans to prosecute in Germany for crimes perpetrated by a German government.

I made further observations back in April during the extradition proceedings.

When Good News is Bad News

The good news: David Souter is leaving the SCOTUS. The bad news: Barack Obama is choosing his replacement. The worse news: he has a rubber stamp Senate to confirm her. I’m predicting the same as everyone else. He will choose an woman from an ethnic minority. Or as even liberal Time magazine says, “White men need not apply.”

I don’t care whether care whether the new justice is a man or a woman. I don’t care what their ethnic background is. What I do care about is the box-ticking exercise of thinking this is important. On one level care about the affirmative action approach to filling one of the nine most important judicial seats in the land. That is a very poor crtieria.

But the much more important thing it that it reflects a much more troubling aspect of Obama’s judicial philosophy.  “I view that quality of empathy, of understanding and identifying with people’s hopes and struggles, as an essential ingredient for arriving at just decisions and outcomes.” This sounds so wonderful and heartwarming.

We need someone who will bend and change the law to make people happy. We need unelected judges to override elected legislators in making law. We need to change the meaning of the Constitution because we feel sorry for people.  If we get a cultural and gender cross-section on the Court, they can represent the people in choosing what the Constitution should become – more white men are more likely to tell us what it is.

If the law cannot be changed on a case-by-case basis, then we are stuck with equality under the law. That makes it much more difficult to favour minorities or special interest groups, especially ones we for whom we feel sorry because we don’t think they have been as materially prosperous. Enlightened justices needs to protect and promote behaviour that legislators, encumbered as they are by the will of the people, won’t endorse.

I want to say in closing that I don’t have anything against David Souter personally. I am very disappointed that he has shifted from the conservative to liberal side of the Court. That’s why I wish I could be glad to see him go. As an individual, he has always been an outstanding example of public service.

Quadruple Jeopardy

John Demjanjuk ought to be left alone. For the last 32 years, this 89 year old man has been fighting allegations that he was a Nazi collaborator and prison guard. First it was US federal prosecutors. When they couldn’t make it stick, the Israelis had a go. When that didn’t work, the US authorities had another shot. Now he is being sent to Germany.

In 1977,  Demjanjuk was accused by the federal authorities of having been a guard at Treblinka, after being identified as “Ivan the Terrible” in a photo during an investigation into someone else. After four years, they eventually could only get him for lying on his naturalisation application, so they stripped him of his citizenship. When he appealed and they couldn’t get rid of him, he was extradited to Israel. Under their Nazi-hunter law, the Israelis have entitled themselves to take anyone from anywhere in the world and put them on trial for their life.

An Israeli special tribunal found him guilty and sentenced him to death. It took seven years, but fortunately the Israeli Supreme Court overturned that in a 400-page ruling. After he was returned to the US, the Court of Appeals ruled that federal prosecutors had deliberately withheld evidence and they gave back his citizenship. A little thing like prosecutorial misconduct that’s not going to stop the Justice Department, so they turned around and made new allegations. It took another five years, but they got him stripped of his citizenship again. This time they tried to deport him to Ukraine, since that’s where he was born. He’s been fighting that since 2005.

Now the Germans have filed 29,000 counts against him for being a guard at Sobibor, a prison camp that closed 66 years ago, run by a regime that ceased to exist 64 years ago, on soil that it occupied illegally, and of which he was not a citizen. The basis of their jurisdiction is that he briefly lived in Munich – not at any time when any offense is alleged to have occured. He just lived there once. He is being deported this week and will be held in prison awaiting trial, unless he is too ill, in which case he will be held in a clinic. It is expected to take several months after his incarceration before his trial begins.

As trial courts seem very willing to convict Demjanjuk, even with prosecutors who have no qualms about doing whatever they have to do to get that conviction, there will no doubt be a lengthy appeal process. He could be well into his 90s before this round of prosecution is resolved, though obviously the chances of him surviving it are slim.

This once again highlights one of the problems with current developments in international law, the over-extension of criminal jurisdiction. Nations feel free to pass legislation saying that even non-citizens can be prosecuted for acts committed outside that country. This has most recently been used by the US  to detain people at Guantanamo Bay and by the British to stop sex tourism in Thailand, though it was also used by Spain to arrest Pinochet in Britain for things he did in Chile as president of Chile. The justification is that these are bad people, so it doesn’t matter how you get them, as long as you get them.

The only country that should be trying anyone for anything done at Treblinka or Sobibor is Poland. Both were on Polish soil, both then and now. If the Poles aren’t interested interested in pursuing quadruple jeopardy againt Demjanjuk, the whole thing should be left alone.

They Call It Democracy

Before Wednesday’s election, the island of Sark in the English Channel was the last feudal outpost in the world. Power was held by chief tenants, who were by right members of the Chief Pleas, the legislative body on the island. The head of the government is the Seigneur who holds the whole island as a fief from the Queen. There is a judge known as the Seneschal.

Everything was going happily along until the owners of The Daily Telegraph, Dave and Fred Barclay, bought a number of businesses on the island, including hotels, restaurants, and shops. They became the employers of about one-sixth of the island’s population. Then they insisted on government reform. They didn’t like the feudal system and wanted to install democracy.

So under threat of personally destroying the Sark economy, they forced elections to be held. There would be a 28-member Chief Pleas elected by the island’s residents. They tried to get rid of the Seigneur and Seneschal. They filed a lawsuit in the High Court in London alleging that these offices were in contravention of European human rights legislation, but the judge ruled against them. But at least there would be an elected legislative body for the population of 600.

About one in eight residents of Sark stood in the election. When it was all said and done last night, only five pro-reform Conseillers were elected. In other words, most of the people want to keep things pretty much as they are.

So after causing the end of a happy fiefdom that has existed without any trouble since the Middle Ages, the Barclay brothers are now shutting down their Sark operations in retaliation against the democratic vote.  As their lawyer told the BBC:

“Today, via their agents in Sark, they [the Barclay brothers] have authorised and decided to close down their ongoing operations in Sark as a result of an election last night of a majority of the new assembly which is called Chief Pleas who are standing on very much an anti-Barclay platform”.

He added: “It was clear the Barclays were clear on their commitment to the island with support – they got no support at all.

“Sark doesn’t appear to want or appreciate the Barclays’ investment and so it doesn’t have it.”

That’s right. “We are going to take our ball – and your jobs – and go home. We wanted democracy so you could vote the way we told you to vote out of a sense of obligation because of our goodness to you.”

Sir David and Sir Frederick are bastards. Bullies and bastards.

Justice for the Uighurs – The Least They Can Do

A number of readers who can imagine that I do anything other than support any Republican policy will be happy to know that I have long been very troubled by use of Guantanamo Bay for holding prisoners. Beyond the problems I have with using Gitmo because it serves a useful loophole purpose by keeping prisoners of the Administration off of American soil, I have trouble with the policy of completely ignoring the power of judiciary. On top of that, I have a big problem with the extreme reluctance to release prisoners even if they pose no threat to the United States.

This is an extraodinary abuse of Executive power. Like most of the expansion of the Executive in the past seven years, no one has dared to attempt to check it, because it is shielded in the patriotism and fear of the War on Terror.

I was particularly disturbed to read about the 17 Uighur prisonser who were taken captive on the basis bounty money offered in Pakistan. I’m not suggesting that all Pakistanis will sell out their mothers for the right price, but some were willing to sell out Uighur refugees from China for $5,000 each.

They were sent to Guantanamo six years ago. It took the military two years to recognise that they posed no threat whatsoever. What happened to the other four years? Well, I suppose it doesn’t matter, since they don’t look like us and talk like us, and after all, they are Muslims. That seems to be the reason they are sitting in prison. I can’t imagine a government lawyer would like to give up six years of his own life for no reason in a foreign country – or actually a military outpost because the laws of that foreign country would not allow him to be held without trial. (That’s why I’ve always said it was 95% of lawyers who gave the rest of us a bad name.)

But then again that government lawyer wouldn’t be there because he didn’t have to flee his own country which had been taken over by another ethnic group who treated him as a second class and suspect citizen because of the way he looks and his religion. And that lawyer didn’t have to flee to the country of other ethnic groups who had no particular sympathy for him and who were willing to sell him out for cash.

But even though the Supreme Court has ruled that judges can release prisoners (not exactly a novel idea) and the Court of Appeal has ruled that there is no basis for holding Huzaifa Parhat, one of the Uighurs, the Administration will not let them go.

The problem seems to be that no country will take them, except for China of course. Chinese officials already have 17 bullets ready, with stamped envelopes addressed to their families ready for the spent cartridges. The one thing the government can’t bear to do is allow them to settle in the United States. Sure they settled them on US-leased land in Cuba for six years, but that doesn’t count. There are 20 churches in Tallahassee willing to help re-home them, amongst other religious and social groups.

The unbelievable and virtually admitted injustice that has been imposed upon these refugees is payment enough to bump them to the head of the queue for a Green Card. In addition to their immediate release, I hope U.S. District Judge Ricardo Urbina will further order the Department of Homeland Security to do just that.

Fewer Men in the Judiciary

The Times claims today that women “are finally breaking through the glass ceiling of senior judicial appointments.” A Telegraph headline asked last month, “Why are there so few women in the High Court?” Of course I’m going to ask the opposite question: why are women more successful in getting on the High Court?

There were 22 High Cout posts available in the latest round of appointments. Five of the successful candidates were women. That’s nearly 23% of the posts given to women. However, there were only eleven female applicants, so the success rate for women was 45%. There were 118 male applicants from whom were filled the remaining 17 posts, so the success rate for male applicants was 14%.

While the Government claims that all judicial posts are filled on merit, this would appear to be more discrimination based on gender. Just like they are intent on having a certain number of female MPs, but to a certain extent are dependent upon the electorate. The judiciary is different. They are appointed by the Lord Chancellor.

But don’t expect things to change when the Tories take power at the next election. David Cameron already has a policy of forcing more women on safe and key marginal parliamentary seats. I have no doubt his Lord Chancellor will follow the same affirmative action policy.

Germany Legally Invades Britain

The case of Dr Gerald Toben is extremely disturbing. Dr Toben is accused of publishing materials “of an anti-semitic and/or revisionist nature”. This is a crime in Germany. The only problem is that Dr Toben wasn’t in Germany at the time.

Actually, another problem is that Germany has a law like this at all. Free speech or a free press are not particularly valuable commodities with the Germans. While I have no sympathy with Dr Toben’s views concerning the Holocaust, I have less sympathy with the Germans, who say that any discussion of history which suggests anything other than the officially approved story must be punished with imprisonment. Dr Toben already did a nine-month stretch in 1999 for being a denier.

Now he has been arrested in the UK and is being held – not for anything done in the UK, but simply for passing through Heathrow Airport on his way from the US to Dubai with a German warrant for his arrest, issued for being a Holocaust denier outside of Germany. That’s the impact of a 2003 agreement signed by EU member states.

In essence, this means that any law passed by any EU country can create a crime that can be committed anywhere in the world which has to be enforced by any member state. Theoretically, the Reichstag Bundestag can pass a law that any criticism of Germany, at any time in any place, is illegal and every other member of the EU will have to be on the lookout for anyone crossing its borders to deport them to Berlin.

It is just me, or does this disturb anyone else?

Lack of Convictions

Once again, between extensive discussions in the comments and work, I’ve gone several days without a new post. And once I have something to post, it’s one of those topics that is important to me, but doesn’t tend to generate a lot of viewship. Oh well. . .

Even though crime in the UK has continued to rise, the number of convictions in trials is at a seven-year low. If this were because the quality of criminal defense work is getting better and better, then I suppose that would be okay. But I don’t think that’s the reason.

This is really due to three main causes. Police forces are under a lot of pressure to meet targets. They need to charge defendants. They put together sloppy cases that the Crown Prosecution Service can’t win.

The other two causes create a danger to the public. They endanger public safety by using cautions instead of trying to get convictions. A signed caution counts just a good for the statistics as a conviction, because it is an admission of guilt.  As reported in The Daily Telegraph, from 2002 to 2006, “there was a 142 per cent rise in the use of cautions for violence against the person from 23,607 to 57,273. There was a 75 per cent increase in cautions for robbery and a 60 per cent rise for sexual offences.”

That’s right, chances are that if you rob someone, the cops will say, “Okay, you’ve admitted you’ve done wrong. Now don’t do it again. We might take you to court if you do.”

The police are also endangering the public with fixed penalty notices. A fixed penalty notice is like a traffic ticket. A cop says you are guilty and issues a fine. The number of fixed penalty notices has risen dramatically, in no small part because the number of crimes for which a notice can be issued has also expanded significantly. This is bad for civil liberties, because there are an increasing number of transgressions for which the burden of proof is shifted to the defendent. But it is also bad for public safety and welfare, because for those who are committing some of these offenses, there is no criminal record.

The following information is from the Home Office:

Offences where a notice might be issued

Examples of offences where a penalty notice for disorder may be issued include:

  • intentionally harassing or scaring people
  • being drunk and disorderly in public
  • destroying or damaging property
  • petty shoplifting
  • selling alcohol to underage customers
  • selling alcohol to somebody who is obviously drunk
  • using fireworks after curfew

Maybe it’s just me, but some of these seem fairly serious for there to be no record attached. You can harrass someone, destroy their property, or steal from their shop, then pay a small fine and go back to what you were doing. Or you could use your shop to sell alcohol to children.  No big deal.

Something that shocked me as a former criminal defense attorney in the States was to learn that only 67.5% of cases in Crown Court (where the more serious cases are heard) result in a guilty plea. And this is an increase. In the States over 90% of cases are pleaded out. This means that that in over 30% of cases sent to trial in Britain, the defense thinks they have a shot at winning. I suppose with a 61% acquittal rate this is not surprising.

This either means that defense lawyers are really good or the police are fitting a lot of people up and having their cases collapse. I think I’m going with the latter.

Palin the Pro-Choice Candidate

Sarah Palin is pro-choice.

With all the political rhetoric and ideological shorthand being thrown around some people may have missed this. She believes that women should have the right to choose representatives close to home who can decide law and public policy, not nine judges in Washington picked by the President. She supports their right to choose, even if they choose differently than she would, since she would like women voters to exercise their right by choosing representatives who will protect all innocent human life.

That’s because she believes that women temporarily housed and fed inside someone else’s body should have the opportunity to spend their lives making all sorts of choices, even though all of them will make good choices and bad choices, and will have to live with the consequences of their choices. She holds the view that they should have those opportunities even if their father was a really bad person. Some people actually think that one man’s choice – even though that choice led to creation of their daughter’s life – should take away her right to ever make one. Fortunately Sarah Palin doesn’t hold such an extreme view. She doesn’t think a child should be punished for their parent’s crime, and especially not with the death penalty.

For those men or women who will have limited choices in life because their genes have limited some of their abilities, Sarah wants to protect their right to choose as well.

Sarah Palin also realises that everyone has their choices limited by law. Everyone that endangers innocent human life uses their body. She’s not pro-choice when it comes to gang violence. She’s not pro-choice when it comes to armed robbery. She’s not pro-choice when it comes to drunk driving (even though her husband was once charged with it 22 year ago, before they were married).

Some women are saying they want the government to keep its hands off their wombs. It seems to me that Mrs Palin is perfectly happy to keep the government’s hands (or anyone else’s for that matter) off their wombs. It’s only when someone starts putting their hands on it that anything bad happens. Sarah definitely has a hands-off policy when it comes to wombs. That’s the only way to protect the unique human life inside it.

Without a judge-imposed law, both Sarah Palin and Joe Biden know that there will be more women in the United States to make more choices. That’s why Joe Biden, as chairman of the Senate Judiciary Committee, has opposed the appointment of judges who would limit their own perogative to choose for the American people. He knows that as many as half of the 4,000 people each day in America who permanently lose their right to choose are women. He knows that many women voters in many states will want to protect the right of every human to choose and he want to continue to keep them from having that right.

That’s why I’m supporting Sarah Palin – the pro-choice candidate.

Barry George Unframed

The big story this week in the UK has been the acquittal of Barry George in his retrial for the murder of TV presenter Jill Dando. At the time of his arrest and initial conviction, I had serious doubts about his guilt.

Having been a criminal defense attorney, I was aware of two things. First, since I hadn’t seen all of the evidence, I was not best placed to make any truly informed opinion about it. Second, I had seen police frame-ups since before I was admitted to Bar. I was practicing under supervision as a law student in a criminal defense clinic when I won back-to-back supression of evidence hearings against undercover narcotics officers who had no qualms about bald-face lying under oath. (My double win surprised both my supervising attorney and the assistant prosecutor, but that’s another story.)

What was obvious at the time was that the police needed to make a case. This was the highest profile murder in the UK for years. Dando was a presenter of the BBC series Crimewatch. The show was responsible for putting dozens of criminals behind bars. The Met were under a lot of public pressure. And if you want to know how the Met responds when they are under lots of pressure ask Jean Charles de Menezes. Oh, wait, sorry, he’s dead.  Ask Harry Stanley, then. No, wait, sorry, he’s dead, too.

Sure, Barry George is a nutter. His mental illness is compounded by his Asperger’s (and I make a clear distinction between the two). That didn’t make him a killer. He was a bit of a pest to women. That’s a long way from sidling up behind one on her doorstep and putting a bullet in the back of her head.

It’s like when the cops tried to spin that he was obsessed with Dando because they found eight newspapers in his flat with articles about her in them. What they didn’t say was that they found a total of 800 newpapers in his flat, so it is not surprising that eight of them had articles about a celebrity TV presenter.

Even though there were eyewitnesses that placed Barry impossibly away from Dando’s Gowan Avenue address, the one piece of circumstantial evidence the police relied on was a single grain of gunpowder reside on a coat belonging to George, found by police a year after the murder. After all, it wasn’t found until after it had been placed on a mannequin by police to be photographed as evidence. Barry doesn’t know how it got there, but I’m afraid I have to go with his suspicion that it was planted there by the police. I’ve known nutters and I’ve known police. Barry only has an IQ of 75, but I’m going with the nutter on this one.

The police maintain that they got their man, but after eight years in prison he got away. They have to do that in order to save face. As a result, it is very unlikely that they will make any real effort to find the real killer of Jill Dando.

Sharing Another Difference Between the US and UK

Another contrast between the US and UK has become apparent today when the FCC ruled against Comcast hampering file sharing. In the UK, people have been getting warning letters from their ISPs if they have been suspected of file sharing.

The British Government want to cut file sharing by 80% by 2011. British Phonographic Industry – the trade cartel for the UK record industry – has cut a deal with six of the UK’s biggest ISPs. The ISPs have agreed a three-strikes policy against customers who are suspected by the BPI of file sharing.

And just because the ISPs are agreeing to boot offenders, this doesn’t mean the cartel won’t take people to court for damages. They have and they will again. That’s not to say the equivalent US cartel, the Record Industry Association of America won’t sue people. They also have and will again.

The difference is the approach by Government. The BPI have Whitehall in their pocket. You’re thinking those must be very big pockets to fit Whitehall in them, but trust me, the BPI and its members have big pockets. Much bigger pockets than the private individuals they like to pick off and litigate into financial oblivion.

I’m not suggesting the record industry isn’t hurting from the downturn in CD sales. But they’re not losing money. Let’s be straight about this. You can’t lose someting you don’t have. Unless you have either pocketed someone’s money and it gets taken out of your pocket or you have invested money and end up with less than you’ve invested, you haven’t lost money. But they are hurting because it must be emotionally painful to be used to wallowing in billions and billions of pounds and to now have fewer billions in which to wallow. Think of what it must be like to be filthy rich and after a huge slump in sales to be, well, filthy rich.

Let me say this again: when you are making huge profits and then you are making less huge profits, you are not losing money.

In the US, the RIAA has had to face accusations of the obvious – they are an antitrust violating monopoly. It appears from my brief look at existing litigation that the RIAA are in retreat. Most recently it seems they have tried to drop cases in such a way as to punish the defendants by forcing them to pay their own legal fees, which, when fighting giant corporations and their lawyers, can be enormous. They have now been losing at that tactic.

In the UK, the courts have not been so enlightened. it is strange to think that in a very capitalist country like the US, the courts and even Congress can see through attempts at creating illegal monopolies and bullying the consumer, while in the socialist UK, big business wins.

So once again in the UK we have to deal with a heavy-handed totalitarian-aspiring Government and their collusion with industry cartels that are determined to maintain their profit levels. I haven’t even touched on the Government supporting the energy utilities putting up their prices by 35% in a single hike to maintain or even increase their profit levels in the face of rising energy costs.

Pre-teen Christian Girls Forced to Convert and Marry

Another one for the all religions and all cultures are equal file . . .

Saba and Anila Younis, sisters from a Christian family. They are 12 and 10 years old respectively. They were kidnapped on June 26 on their way to their uncle’s house in the Punjab province of Pakistan. When their father went to the police to complain about the kidnapping, he was threatened. By the 28th, their kidnappers had married them and filed with the police for custody of them. Their husbands declared that the girls had converted to Islam.

Apparently in Pakistan if a man finds a 10-year-old that he just can’t resist, he kidnaps her. If she’s not Muslim, he wants her converted, because even though it is legal for a Muslim man to marry a non-Muslim woman, there’s no reason he should have to have a kafir as one of his wives. I’m not sure if a man has to file for custody of any of his wives in Pakistan, or if it is just for those under 13.

As reported by Ecumenical News International, a court has agreed that the forced conversion was pefectly legal. There appears to have been to no challenge to the legality of the forced marriage.

This is by no means a unique situation. In a blog describing the hundreds of forced conversions to Islam in Pakistan, there is a quote from US Secretary of State Condoleezza Rice telling President Musharraf at a 2005 meeting that Pakistan is “a model country for the Muslim world”.

Moneygrubbing

Carol Williams is a millionaire. She earned her money by divorcing a successful businessman. She said he was overbearing and controlling. She got £1.4 million ($2.8 million) in a settlement agreed by both parties.

Sounds like her lawyers did a pretty good job. She thought so. That is, until two months later when the House of Lords ruled that the wives of the rich were entitled to much more.

Now Ms Williams is suing her lawyers, because if they has delayed her case (even though she was very keen to push the deal through) until after the ruling, she could have gotten a bit more than twice as much. As they say, 20/20 hindsight is a wonderful thing. Since her lawyers couldn’t predict the future, she wants them to cough up the extra £1.6 million to which she is entitled.

Of course it’s not cheap to sue your lawyers. The costs are around £400,000 and Ms Williams says she has been forced to sell her house to fund the litigation. Forced by her own greed.

The Cost of Multicultural Accommodation

Any Muslims dealing in either drugs or explosives will not have to worry about being sniffed out by police canine units. There will have to be exceptional circumstances – apparently above those that normally justify sniffer dogs – to search the property of a Muslim if the owner objects. That’s because not only do the police have to bend over backwards to avoid offending terrorists, but also because it takes a lot of effort to put special bootees on the dog.

That’s right. Dogs used in searching Muslim premises will now have to wear bootees so the dog itself does not touch anything belonging to a Muslim police suspect. This would obviously include their bombs. This does make sense if you think about it. After all, the bombs are being used for religious purposes. What will Allah think if they have been touched by a dog? Could this reduce the number of virgins to be enjoyed by the suicide bomber if he allows defiled bombs to blow up infidels?

But you want to really upset the Muslim community? Do what Tayside Police have done, and feature a puppy on a postcard. Because there is a puppy sitting on a police hat in an advertisement about the Scottish force’s new non-emergency phone number, Dundee shopkeepers of that religious persuasion (and there would seem to be a significant number) are refusing to display it.

There is no actual dog present on the postcard to touch the actual property of an Muslim, so there is no chance of actually defiling anything. I think there is a lesson in this for the BBC, ITV, and other broadcasters. They will need to avoid any programmes that feature dogs. It’s a good thing they haven’t been showing sheepdog trials and they will need to cut coverage of Crufts. I don’t know how Birmingham City Council, which governs one of the largest Muslims communities in Britain, has allowed the world’s largest dog show on it’s property (it’s one of the two shareholders of the NEC Arena) without Muslims staging a protest, picketing and threatening to kill everyone inside.

This is not absurd. The question is where do you draw the line of multiculturalism? Where is the limit of accommodation? For the Government of the Day, it is clearly more important than the protection of the realm. As I noted yesterday, for the Cheshire education authority, it is important enough to force children into idolatrous worship.

Today’s absurdities become tomorrow’s realities. We have seen this over and over.

I haven’t yet touched on this week’s statement by Lord Phillips of Worth Matravers, the Lord Chief Justice of England and Wales, that aspects of Sharia law should be adopted in Britain. This follows the advice of the Archbishop of Canterbury earlier this year. Some people will say that since Beth Din courts are allowed by Orthodox Jews, why shouldn’t Sharia courts be allowed. Well, Sharia courts are already allowed – just not enforceable under English law. Orthodox Jews also have no agenda of bringing all of Britain under the 613 mitzvahs.

With all this accommodation, you would think that Muslims make up a significant minority in this country. Is it right that everything should be changed for 2%-3% of the population and that we should live in fear of whether or not we keep them happy? But it’s not even 2% of the population that are the issue. It is a much smaller minority – a minority within the minority. As reported in the Telegraph:

Khalid Mahmood, Labour MP for Birmingham Perry Bar and a practising Muslim, said that allowing sharia in parts of the UK would be divisive.

He said: “This would create a two-tier society. It is highly retrograde. It will segregate and alienate the Muslim community from the rest of British society.

“The majority of British Muslims want to live only under British law and they would reject anything that means they are treated differently.

So why are we toeing a line continually re-drawn by radical Muslims? Have they already won the war on terrorism and we are afraid to challenge them? Are we really ruled by a bunch of lily-livered liberal multiculturalist sycophants? Do I even need to ask these rhetorical questions?

Catching the Real Criminals

With the continuing rise in violent crime, it is comforting to know that some criminals are being prosecuted to the fullest extent of the law. Rachel McKenzie is one such criminal. Now admittedly she didn’t kill anyone. She didn’t even beat up anyone. She didn’t rob anyone. Criminals like that can be treated with lenience.

No, Ms McKenzie, who works for the Catholic archbishop of Southwark (I sense a true scandal brewing) failed to pay 20p of a bus fare. Those who know that justice must be blind should agree that not realising she hadn’t paid the fare is no excuse. She should have heard the beep when she pressed her Oyster card on the reader. She should have checked that her card had enough credit. If we as a society start letting people pay 70p for a 90p bus journey, where will it end?

And it doesn’t matter than when the ticket nazi inspector got on the bus and read her card, she offered to pay 20p out of her purse. A crime had been committed. Now some people might think that if 20p isn’t enough, she should be allowed to pay the £20 penalty fare. After all, as a Transport for London legal department wrote to Ms McKenzie, “Consistent with all cashless services, it is your responsibility to ensure you have sufficient credit in your card to pay for your bus journey.”

But does a penalty fare of 10,000% send the right message to Ms McKenzie and criminals like her? The ticket nazi inspector and his superiors at Transport for London don’t think so. No, some criminals must face the music in court. Why shouldn’t she get a criminal record, a fine of up to £1,000 and pay the costs of prosecution? That’s what will happen if she is convicted.

If she isn’t convicted, the costs will have to borne by taxpayers. This is going to be in the range of £5,000. I don’t know about you, but as a taxpayer, I have to hope Ms McKenzie is brought to justice. Remember, it’s not like she’s the only offender. After all, Transport for London brought more than 30,000 prosections last year, in additon to the more than 47,000 who were clearly less culpable than Ms McKenzie and received the £20 penalty fare.

Now before you think I am blowing this out of proportion and that a court will never find against Ms McKenzie, bear in mind that Ashley Williams tried to get off the bus last year when her Oyster card beeped insufficient funds, but the driver closed the door and pulled away too quick. She got off as soon as the bus reached the next stop, but as the court realised, a crime had been committed and must be punished. Ms Williams has a criminal record and like Ms McKenzie she will now have trouble with things like getting a visa to visit the US.

The Evil Continues

Ryan Herbert and Brendan Harris were sentenced today for the murder of Sophie Lancaster. With their so-called life sentences Herbert got a 16-year tariff and Harris got 18 years.

Ryan and Brendan got much less than what they deserved, but that penalty isn’t available in this country. As I mentioned to one of Ryan’s supporters, who left a comment here today, the judge said, “This was a terrible case which has shocked and outraged all who have heard about it. At least wild animals, when they hunt in packs, have a legitimate reason for so doing, to obtain food. You have none and your behaviour on that night degrades humanity itself.”

The sentencing of these thugs should not lull us into thinking that Britain is a safer place. Without even leaving the Northwest of England, the Daily Mail today has the case of Julie Pickford. She was asked a boy to stop throwing popcorn at other passengers on a tram. “Without warning, one girl stood up and punched her in the face and then a mob of up to 30 teenagers joined in, punching her and stamping on her. . . With blood streaming from her injuries and £50 stolen from her handbag, she was thrown off the tram at the next stop in Sale, Greater Manchester.”

Court of Appeal Rules Man Can Carry a Stick

It is a stark contrast between the right-to-carry laws in the US and the stripping of weapons in the UK and at the same time a demonstration of taxpayer money wasted in the pursuit of a political agenda.

Stuart Kennedy is a stripper who uses a police uniform as the set up for his act. He was stopped out the Paramount Bar by two real cops. They weren’t so worried about the uniform – though they did follow him to the pub to make sure he was telling the truth. There’s no indication as to whether either constables Amanda Lawson and Fiona Duncan enjoyed the show. Of course they needed to watch the whole thing to be sure. That’s right, two police women watched him on taxpayer time, just to be sure he was a real stripper. PC Lawson told the trial court, “We had never been in a situation like that before. We needed proof he was a stripper.”

But that wasn’t the issue. No, it was his truncheon that bothered them. Stuart used a real police truncheon, not a floppy imitation. The policewomen arrested him after the show. He was charged with carrying of an offensive weapon. There is an provision in the law for a “reasonable excuse” but neither the police nor the Crown Office (the prosecutor in Scotland) thought Stuart had a reasonable excuse. The sheriff (trial judge) disagreed and threw the case out of court. Both he and the general public thought it was a waste of time and money.

Not to be put off by a judge or the overwhelming common sense of the Scottish people, the Crown appealed. This time three judges told them the same thing. The full written opinion will be released at a later date, but the Court of Appeal decided not to waste anyone’s time and let it be known that the Crown’s case had failed.

There is probably no way to tally the total costs of this overblown exercise in comic jurisprudence. All of this over who can carry a stick with a handle.

Family Matters

The most senior family court judge in southwest England has diagnosed the cause of the almost every evil in society today. Sir Paul Coleridge blames pretty much everything on the breakdown of the family, which he labels a cancer.

Though he is certainly an expert on these matters, this is not something that requires such a specialist to diagnose. But even though he is stating the obvious, it is something that the Government, with it’s family unfriendly policies, is ignoring. It is not just no-fault divorce. Mr Justice Coleridge includes the “meltdown” of the parent/child relations as well.

So you combine no-fault divorce with all-fault discipline (given the restrictions imposed by the law, compounded with the tendency to assume any discipline exceeds those restrictions) and you have a recipe for disaster. Disaster is certainly what we have in this country. Disaster is what we see every day in schools – with a combination of kids who can’t draw their family tree and as they are shifted throughout the week from one parent to another, or sometimes a relative, or a former partner of a parent, with no consistent structure in their life.

If that’s what it’s like in relatively sedate rural areas, think about what other educators face each day in the more urban environments. Several years ago I taught in a city of about 70,000. I was talking to a head of year who was sending out congratulatory letters to parents of children who were performing above expectations in at least five subjects and also letters to parents of children for whom significant concerns had been raised in at least five subjects. As he was looking through the envelopes, he noticed that all of the former were sent to “Mr and Mrs” and all of the latter were sent to single parents or adults of two difference surnames.

This echoes Sir Paul’s statement, “I am not saying every broken family produces dysfunctional children but I am saying that almost every dysfunctional child is the product of a broken family.”

Without Objection

Except for presidential politics, I tend to blog mostly about things on the eastern side of the Atlantic. That’s probably because living here, most of the things that affect my life on a daily basis are here. However, having visited the blog of a commenter to a previous post, my attention is drawn westward.

Each of Mark McGaha’s children have been declared a Child in Need of Services (CHINS) by an Indiana Circuit Court at the behest of the Department of Child Services. I can’t opine on whether they should be CHINS or not, or whether they should be in foster care.

As a lawyer I used to handle occasional CHINS cases in Indiana, usually representing the interests of one or both parents. One of my longest-running cases was a CHINS case involving what I called the family tree that didn’t fork. So I’m not denying that there can be situations whether the State needs to step in.

Unless there have been significant changes in my absence, like all buraucrats, DCS workers range from good to bad. If McGaha’s allegations are true, then there are some in Fountain County who are very bad. One thing that concerns me is that there is no mention of McGaha’s lawyer. He needs one. If he is doing this on his own, sadly he is fighting at a severe disadvantage.

This may be why the Fountain County Circuit Court judge got away with an outrageous unconstitutional act. She issued a restraining order preventing WXIN in Indianapolis from showing McGaha’s face or even allowing him to make his complaints against DCS. As one of my old law professors commented to the Indianapolis Star, “I don’t know what’s more outrageous: the judge ordering this and not knowing it violates the Constitution, or knowing and still issuing the injunction.” He described this as bordering on judicial misconduct. “Quite simply, a judge does not have the authority to stop the press from publishing or airing a story. Any person has a right to contact the press and say a public agency is not treating them right.”

Because of the inherent power of the bureaucracy, the press is one of the only checks upon it. That is why it is so important that access to the press not be denied. The greater the power, the more important the power to question it and challenge it. The more important that it stay on the straight and narrow. Otherwise rights get trampled upon. Otherwise democracy is meaningless.

The Cost of Coffee in Saudi Arabia

An American businesswoman is fearing for her life after she was arrested for having a coffee with a male workmate in a Starbucks in Saudi Arabia.

Yara, a 37-year-old mother-of-three, said she was strip searched and forced to sign false confessions while in custody. A judge then told her she would “burn in hell” before she was released on Feb 4.

I don’t like to meta-blog, but I’m a bit short on time, due to marking exams. However, the full story is worth a read.

Crazy

I’m not usual one to report “celebrity” sort of news, but in case anyone outside of Britain has missed it, Mohamed al Fayed testified before the inquest into the death of Diana, Princess of Wales. Yes, I know it has been over ten years since her death, but her cause of death is only now being officially determined by a jury. This is mostly because of Mohamed al Fayed.

He is the father of Diana’s lover du jour, Dodi Fayed.  He has always told the press (over and over) that he is convinced that Diana’s and Dodi’s deaths were the result of a complex plot. Now he has told the inquest jury. The full details are worth reading in a reputable source like The Times. Why do you want to read this? Because it is truly bizarre. Let me just set the stage:

The alleged plot involved Prince Philip, Prince Charles, British, French and American security services, the French judiciary, ambulance staff, pathologists, newspaper editors, two former Metropolitan police commissioners, the Princess’s sister and brother-in-law, the former British ambassador to France, and the Princess’s lawyer, among others, and it was sanctioned by Tony Blair.

It gets more weird. Really.

Sharia Justice

A Saudi man was rendered impotent by a witch. We know this because the witch, Fawza Falih, admitted it. She was beaten before she confessed, but as any good CIA agent working in the war against terror knows, sometimes you have to use a little force to get the truth. Falih was beaten so badly that she had to be hospitalised.

And sometime it takes a while for criminals such as Falih to finally admit their crimes. She was held by the religious police for 35 days.

She didn’t exactly sign the confession, as she is illiterate. But there’s no denying her fingerprint is on it, and there’s no reason to believe that someone who has been beaten would have their finger forceably inked onto something they can’t read. Why should the religious police even read your confession to you before putting your fingerprint on it? They are the religious police after all. If you can’t trust them, who can you trust? And if you confess, why do you need to have your lawyers in the courtroom or present evidence of your innocence? Isn’t the claim of impotence by a man proof enough?

It’s a mere technicality that witchcraft isn’t a crime under Saudi law. She was sentenced to death anyway.

She managed to appeal and the appeals court overturned the verdict, saying she couldn’t be sentenced to death solely on the evidence of a retracted confession. Appellate decisions don’t carry a lot of weight in Saudi law. The trial court reversed the appeals court. It sentenced her to death on a “discretionary” basis, as this was in the “public interest”. There is no right of appeal from this second sentencing. Only the King can intervene and commute it.

There’s not a lot of international pressure on King Abdullah. It seems many countries used up their political capital last year when they persuaded the King to pardon a girl who was sentenced to lashes for getting herelf gang-raped. So Fawza Falih may die, but Saudi Arabia will remain a key ally of the West.