borealnemeton.org » civil liberties

FL: Freedom of Press Still Works

Borealis — Wed, 01 Oct 2008 00:18:19 +0000

In case you were wondering: the Florida 4th District Court of Appeal announced yesterday that a newspaper cannot be barred from covering its own trial.

The Orange County Register is being sued by 6,000 current and former newspaper carriers on some labor law issues that are not all that interesting. What is interesting is the two cases where the Appeals Court thinks prior restraints are justified: troop movements in war, and anything that would bring about a nuclear holocaust.

Normally I agree with the old adage that those who would sacrifice liberty for security deserve neither. But I think I’m okay with sacrificing some liberty to prevent the End of Days.

Well done, court. I think that’s a fine place to draw the line.

Revising the Right to Trial by Judge?

Borealis — Tue, 29 Apr 2008 14:20:22 +0000

Following the acquittal of Shawn Bell’s killers, one of the lawyers pointed out an interesting discrepancy between the New York and Federal criminal procedure systems: in New York, a criminal defendant has a right to a jury trial, and can waive that right. In the Federal system, however, the United States also has a right to a jury trial, and both parties must waive their rights in order to have a bench trial.

Ordinarily I don’t like criminal procedure rights that flow to the government. The government has enough tools in their belt as it is, and procedural rights are a check against government overreaching. The right to trial by jury, in particular, is a right to be judged not by the government but by the people, and was originally viewed as a necessary tool against government oppression.

When public officials are on trial for crimes under color of their office, they like bench trials for exactly the same reason that ordinary criminal defendants tend to be suspicious of them: the judge is part of the government, who identifies with other government officials. Most judges tend to presume police officers are trustworthy public servants.

Therefore, I propose the following: all cases alleging official misconduct (be they criminal actions, Bivens actions, or § 1983 actions) must be tried to a jury, and neither the plaintiff/prosecutor nor defendant can waive that right. The right to a mandatory jury trials in this case would not be a right that is personal to a party, but a right of the people to have the community be the judge of its officials.

Thoughts? Is this a terrible idea? Brilliant? Use the comment form!

Sometimes even I agree with the Washington Times

Borealis — Fri, 18 Apr 2008 12:37:14 +0000

This Editorial in the Washington Times begins:

There are two kinds of people in the world: the kind who think it’s perfectly reasonable to strip search a 13-year-old girl suspected of bringing ibuprofen to school, and the kind who think those people should be kept as far away from children as possible

The first group includes officials at Safford Middle School in Safford, Ariz., who in 2003 forced eighth-grader Savana Redding to prove she was not concealing Advil in her crotch or cleavage

Advil? Seriously?

Yes, in fact, not only did the school strip search the poor girl, but a three-judge panel the US Court of Appeals for the 9th Circuit (the liberal wacko circuit, if you’re at the Washington Times) recently held that it was just fine for them to do so!

Apparently this enraged (or at least intrigued) enough justices for the en banc (full) court to hear the case, and the Times reports that they just heard oral argument. I just hope that the en banc circuit reverses, and that the US Supreme Court doesn’t put their hands on this.

The ACLU has joined as co-counsel for the girl in the en banc appeal.