Don’t Tread On The Color Purple

Among the aspects of life of the poor, underprivileged students at Yale that made them unable to eat or sleep was that the people in charge of their residential colleges held the title “master.” Though the word “master” had nothing to do with slaveowners, it was sufficiently reminiscent to compel its elimination.

The argument, at the time, was that the elimination of the word made students feel better and did no harm (aside from undermining tradition, which is way overrated), so what was the big deal? Why not make a fairly easy change that would assuage the feelings of students, regardless of the lack of any substantive connection between the word “master” and their feelings about the word?

The Equal Employment Opportunity Commission has now been asked to hold that the wearing of a hat bearing a likeness to the Gadsden flag, the snake with the words, “Don’t tread on me,” can create a hostile work environment in a federal agency.

Complainant maintains that the Gadsden Flag is a “historical indicator of white resentment against blacks stemming largely from the Tea Party.” He notes that the Vice President of the International Association of Black Professional Firefighters cited the Gadsden Flag as the equivalent of the Confederate Battle Flag when he successfully had it removed from a New Haven, Connecticut fire department flagpole. Continue reading

Hooray Female Olympians (and Title IX)

This year’s Olympics will bring an important change for American athletes.

American women were not exactly a powerhouse at the 1972 Summer Olympics: They won just 23 medals, compared with 71 for the U.S. men. The women were absent from the medal podium in gymnastics. They didn’t win a single gold in track and field, managing just one silver and two bronze.

But something else happened that year. The U.S. Congress passed Title IX, which bars sex discrimination in education programs receiving federal money. Sports wasn’t the focus of Title IX. In fact, quite the opposite.

Well, not exactly true, but since few remember (or care to remember) that Title IX was sold to the public as a means of offering women parity in athletics, there’s no reason not to completely revise history to conform to whatever current trends demand. Continue reading

The Plumber Problem

It was my third home, and I was ready to do some serious work to make it just the way I wanted it.  I hired a contractor, Frank, to redo the master bath. Frank was a good guy, who did the kitchen already, and we loved his lead guy, Vinny.

It’s important that you like the people you will be living with day after day when doing a home renovation project. Regardless of whether they’re skilled, they become like family. Either you welcome them every morning or dread their arrival. We liked Vinny, and were always happy to see him show up for work at our home.

Having reached the point where I was comfortable indulging in the fixtures that I really wanted in my bathroom, I picked out a sink made in Italy. It was expensive, but it was what we wanted. And it would take 12 weeks to arrive, which meant it was a huge commitment. The plan of action for the renovation of the master bath basically revolved around the sink. This sink became the driving force of the project’s timing and focus. It was all about this sink. Continue reading

No One More Than John MacKenzie, May He Rest In Peace

To call the New York State Parole Board’s handling of the lives of human beings a failure of monumental proportions is to give the Board credit it doesn’t deserve. It is a political cesspool, an affront to every sentencing judge who does his best to impose a lawful and justifiable sentence. It is above reason. Above law. Above integrity. Above everything.

And now, it killed John MacKenzie.

MacKenzie’s story was told here and by the New York Times.  He was as appropriate a human being for parole as could be, and there was absolutely no legitimate dispute that he should have been paroled.  This is why Kathy Manley obtained a ruling from Dutchess County Supreme Court Justice Maria Rosa holding the Parole Board in contempt for its irrational refusal to grant MacKenzie parole, after 40 years in prison and 16 years of parole eligibility, without any justification other than the original offense of conviction for which he was sentenced by the court.

But the Parole Board, unrestrained by anything, decided that they didn’t like that sentence. They wanted MacKenzie to stay in prison for as long as they decided. Forever, if that’s their choice, because they are under no constraints to do anything more than whatever the fuck they feel like doing for any reason or no reason. Because they can, as long as they throw in the right words. Continue reading

Suddenly Unconstitutional

A facial constitutional challenge to a criminal law isn’t easy to win. It’s not meant to be. The notion is that a legislative determination that something should be criminal should be given great deference by a court, which should do its utmost to find a way to square the law with the Constitution. So why are there so many facial constitutional challenges lately? And why are they prevailing?

First, some law.

It is well-settled law that legislative enactments carry a strong presumption of constitutionality (People v Stuart, 100 NY2d 412, 422 [2003); People v Scott, 26 NY2d 286, 291 [1970)) Thus, a party seeking to find a statute unconstitutional bears a heavy burden and “must demonstrate, ‘beyond a reasonable doubt’, that the statute suffers from ‘wholesale constitutional impairment'” (People v Davis, 13 NY3d 17, 23 [2009), quoting Matter of Moran Towing Corp v Urbach, 99 NY2d 443, 448 [2003)). While this burden is high, facial constitutional challenges are permissible “in the presence of a constitutionally protected right” (Dickerson v Napolitano, 604 F3d 732, 744 [2d Cir 2010)[discussing City of Chicago v Morales, 527 US 41 [1999)).

While this comes from a New York decision, the point is fairly universal. If there is any way a court can avoid holding a law unconstitutional, it should do so. The party, invariably the defendant, arguing that a law is facially unconstitutional comes to court and faces a huge mountain to climb. It’s supposed to be that way. Laws don’t get tossed easily. Continue reading

Breathless Over Pantless

Bad things happen in jails. Terrible things. This just wasn’t one of them. When Sandra Bland was found dead in her cell, that was worthy of outrage. That the female defendant who appeared before Louisville Judge Amber Wolf was not wearing pants is at most insignificant, and at worst, no issue at all.

The video of Judge Wolf reacting to a woman in court without pants has gone somewhat viral, which is surprising given that the video is 12 minutes of painful tedium. Keith Lee twitted it at me early, and I watched it, thinking only that Keith owed me 12 minutes of my life back. At the time, it appeared that the woman, who remains unnamed as she should, was in a state of undress that evoked outrage by the judge. Was she naked underneath her long t-shirt? Was she in her panties? It’s never said, but that she wasn’t in pants was clear and, to the judge, wholly unacceptable.

“Excuse me? This is outrageous. Is this for real?” Judge Wolf said upon hearing this from the defense attorney.Footage of the proceeding was captured by the courtroom camera. Wolf continued, “Am I in the Twilight Zone? What is happening?”

“This is completely inhumane and unacceptable,” Wolf told the woman. “I’m sorry you had to go through this.”

Continue reading

The Transgender Strawman Is Stayed

The Supreme Court granted a stay of the Fourth Circuit’s decision in G.G. v. Gloucester County School Board, holding that under Title IX, Gavin Grimm, a transgender man, was entitled to use the bathroom of his choice.  The circuit had earlier refused to stay its decision.


This puts the case in a holding pattern, maintaining the status quo ante, pending the petition for cert, and the Supreme Court’s decision on whether to grant it, which is a significant setback for the effort.  Had the Fourth Circuit’s decision gone forward, it would have become a fait accompli, serving dual purposes. Continue reading

Jay Nixon, For The Defense

At Fault Lines, Orleans Chief Public Defender, Derwyn Bunton, was crossed, following his painful decision to start refusing cases that his office could no longer competently handle.

We are committed to operating within the “triangle of defense:” on one side of the triangle are constitutional mandates, on another side are ethical requirements and on the other side are professional standards. Our cases have to fit in that triangle, and to the extent our cases don’t fit in the triangle, our representation is compromised, ineffective or non-existent.

The fact was that the volume was overwhelming, the burdens on public defenders intolerable and the reality that his staff, no matter how great their effort and dedicated to their clients, the constitution and ethics, was unable to function within the “triangle of defense.”  Derwyn had no option but to say no.

But that raises a question. Is the situation in Orleans Parish that much worse than other places that there, but only there, the ram had hit the wall?  Were other public defenders doing fine, or at least meeting minimal requirements? Was Derwyn wrong, perhaps too demanding, or are others wrong, not demanding enough?

On August 2, 2016, Michael Barrett, the director of the Missouri State Public Defender sent a letter to Governor Jay NixonContinue reading

Arrested For A Camera In The Courthouse Hallway

At first blush, the naivete is borderline painful. How is it possible that Daryl Khan didn’t see this coming?

I am writing this from inside a jail cell. I was put here for doing an unremarkable, routine bit of journalism, covering a sentencing in a murder. I won’t go so far as to say I was arrested since I was never read any rights. I am in the cell just the same.

I must have covered hundreds of similar hearings in my career. But this is the first time I ever ended up in the same cellblock as the subjects I was covering.

Sigh. Let’s start at the top. Being read Miranda rights has nothing to do with being arrested, but with the ability to use statements as evidence. When you start out with something so clueless, it makes one wonder how you could have “covered hundreds of similar hearings” and learned nothing.

But then, you didn’t end up in a cellblock because you did “an unremarkable, routine bit of journalism.” To say that reflects a cluelessness that makes one wonder how you can call yourself a journalist. Continue reading

True Threats And Jessica Valenti

I’ve never been a fan of Jessica Valenti. Not because she’s an outspoken feminist, but because she’s the feminist version of Shaun King. A forceful, passionate voice that’s a few quarts low on knowledge and credibility.  She spews ignorant hatred at males and gets ignorant hatred in return. Of course, she’s allowed. Her detractors are exhausting.

But now, Jessica Valenti says she’s leaving social media because she received a rape and death threat directed at her five-year-old child.

A prominent feminist writer and columnist said she is being forced to abandon social media after receiving rape and death threats against her 5-year-old daughter.

On Twitter, popular writer Jessica Valenti wrote: “This morning I woke up to a rape and death threat directed at my 5 year old daughter. That this is part of my work life is unacceptable.”

The “threat” she claims to have received remains a mystery. She has not, as far as I’m aware, disclosed the threat. Given her history, it’s difficult to take her word for it. But that only applies to people disinclined to believe the victim just because. In the feminist and social justice worlds, not only do they believe with every ounce of their being, but they are outraged that anyone could doubt the victim. Proof plays no role in the religious life of zealots. Continue reading

FIRE and Rain

If history teaches anything, phrases like “hate speech” and “marginalized communities” will be chalked up to a Koch Brothers conservative conspiracy in 20 years. Hemlines will have risen and fallen many times, and bell bottoms may have even come back in style. And progressive minds will be resolute in their defense of free speech, as if preventing the neo-Nazis from marching on Skokie was even an acceptable possibility.

The New York Times, in a surprisingly pleasant turn of events, tells of the efforts of FIRE, the Foundation for Individual Rights in Education, started by Harvey Silverglate in 1999 in response to restrictive speech codes gaining popularity on campus.

FIRE was started in 1999 by Harvey A. Silverglate, a criminal and civil rights lawyer in Boston, and Alan Charles Kors, now a retired University of Pennsylvania history professor. They met as Princeton undergraduates, and in 1998 wrote “The Shadow University: The Betrayal of Liberty on America’s Campuses.” The book is an exhaustive recounting of administrators’ abuses of freedom of speech and due process, and a warning that the academy was being undermined by speech codes — restrictions that colleges and universities began to put in place in the 1980s, in part to protect the growing minority student population from racial intolerance.

In the 60s, campuses erupted in protest against restrictions on freedom. By the 90s, when people grew weary of too much liberty, the pendulum swung the other way. The same arguments were used, wielded as artfully as one could expect of students for whom reason was little more than an excuse to get whatever served their purpose at the moment, but now to silence. Continue reading

Nine Years After

How long? At the moment, it’s almost nine years, the journey having begun in 2007.  Carlos Vega still sits on the Rock awaiting his future.

Mr. Vega was arrested in the Bronx on Sept. 30, 2007, accused of killing a man in a bodega. Now 33, he has been in jail for nearly nine years. Three trials have failed to yield a verdict. The first trial, more than four years after the murder, ended in a mistrial after the wife of a key witness became ill. The second ended in a hung jury, and the third also ended in a mistrial after a confrontation with a guard left Mr. Vega hospitalized.

In all, Mr. Vega’s case has come before the court 126 times as it has been shuffled among three defense lawyers, five prosecutors and 12 judges. Another hearing is scheduled for Monday.

That’s the “what,” even if in abbreviated version. But it’s not the “why.” If you don’t read the story carefully, you might think you know why, but you don’t.  Not really. That there were three mistrials along the way, each for a decidedly different reason, doesn’t answer much of anything.

The numbers seem wrong, 126 court appears, all those lawyers and judges. But aside from giving off an unpleasant scent, they explain nothing. Are they the cause of nine years delay or the consequences? Has Carlos Vega been the victim of the system or is he beating the system at its own game? Being in pre-conviction status for nine years sounds terrible, but it beats being convicted and serving a 25-year sentence for murder before being denied parole for the next 27 years. Continue reading