Sunday, June 25, 2006

Iraqi Sovereignty: The Coming Conservative Explosion Over Iraq

At some point, the Administration's commitment to "staying the course" and promoting democratic sovereignty in Iraq are going to be tested in the face of overwhelming conservative outrage. Iraqi Prime Minister al-Maliki is proposing a reconcillation plan to reunite his country and begin the process of nationalizing a new Iraq, free from America's presence.

His currently plan, which is still lacking key details and seems to be a rather shifting proposal, has two key components which is likely to cause some conservative heartburn for the Administration. The first proposal has already been very controversal, and has already gotten some attention, and that's the Prime Minister's plan to offer amensty to insurgents for killing American and Iraqi security personnel. Amazingly, several prominent conservatives in Congress has already publicly stated their support for granting amensty to the killers of our forces overseas.

And I can't understand how conservatives on one hand argue against "amensty" for illegal immigrants who have not committed any crime (being illegal in the United States is not a crime, but a civil violation of a statute), not killed our men and women in uniform, and then applaud granting actual amesty to the terrorists who have been killing our soldiers.

The second issue is a timetable to have American forces leave. Apparently, the Iraqi Prime Minister does not believe continued American presence is necessary to avoid looking weak or that to pull out is the equivalent to "cutting and running." However, a little noticed aspect of the plan is to have U.S. forces under Iraqi command before they leave, as a means to bring the security interests of the country under Iraqi stewardship, and not American.

Remember the 90s? Remember the right-wing paranoia about American troops under U.N. command? How do you think the far right wing is going to react when this Administration proposes that American forces are placed under the very command of those that wish to grant amensty to those killing our sons and daughters?

Can you imagine if a Kerry or Gore Administration had proposed such a thing?

When you start seeing polling showing conservatives are leaving the President on Iraq, remember this post. And you'll be able to say that you saw the reason why first!

Monday, June 19, 2006

The ugly resurrection of Ohio v. Roberts

For those of you who care to read about politics at this blog, check me out over at Buckeye State Blog. I occasionally prefer to write about the law purely, even if they are posts nobody ever reads (much like the rest of this blog.)

Today, the United States Supreme Court released its anticipated decisions to Davis v. Washington, and its companion case, Hammon v. Indiana, (Case Nos. 05-5224 and 05-5705, respectively, soon to be cited as 547 U.S. (2006). The case was a clarification of the Court's ruling about the Sixth Amendment right to confrontation as articulated in Crawford v. Washington, 541 U.S. 36 (2004) in which the Court overruled, in part, Ohio v. Roberts, 448 U.S. 56 (1980).

Crawford, a decision written by Justice Scalia, derided Roberts and its unreliable, inconsistent, unpredictable progeny for permitting the testimonial evidence of an unavailable witness because it met some legal standard of "reliability" despite no constitutional or legal historical basis that the right to confrontation contained such a "reliability" exception.

In tearing apart the precedent of Roberts, the Court stated:

"Where testimonial statements are involved, we do not think the Framers meant to leave the Sixth Amendment's protection to the vagaries of the rules of evidence, much less to amorphous notions of "reliability." Certainly none of the authorities discussed above acknowledges any general reliability exception to the common law rule.

"Dispensing with confrontation because testimony is obviously reliable is akin to dispensing with jury trial because a defendant is obviously guilty. This is not what the Sixth Amendment prescribes."

With Roberts effectively dead, where evidence is testimonial in nature, reliability is not the key to admissibility, but the presence of the opportunity to confront the witness about their testimonial evidence by the Defendant was key. The only unanswered question left by Crawford was: What constitutes testimonial evidence?

Although that question left unanswered, legal scholars thought they understood the Court's admonishment to the courts when it stated:

"The Framers would be astounded to learn that ex parte testimony could be admitted against a criminal defendant because it was elicited by "neutral" government officers. But even if the court's assessment of the officer's motives was accurate, it says nothing about Sylvia's perception of her situation. Only cross- examination could reveal that."

And now we come to today's Davis decision where the revolutionary thoughts of Crawford are replaced with the practicality considerations that led to the confrontation clause disaster that was Roberts.

In Davis, the relevant statements at issue was the recorded statements the alleged victim made during her 911 call where she identified Davis as her attacker. However, the victim did not appear at trial, and the only evidence that Davis was the cause of her injuries was the recorded 911 conversation. Davis objected to the playing of the tape as it was being offered as testimony of the victim in a manner in which Davis had no opportunity to cross-examine her.

The United States Supreme Court upheld the playing of the 911 tape and held that there was no Sixth Amendment violation because the tape was not testimonial (even though it was clearly played by the State for the purposes of substituting the victim's actual testimony.)

By classifying the tape as "non-testimonial" the Court committed the same sin it had committed in Roberts. Although the Court agreed that the statements were made in the course of a police interrogation, the Court held that they were not testimonial "when made . . . under circumstances objectively indicating that the primary purpose of the interrogation is to enable police assistance to meet an ongoing emergency."

If there is any historical precedent to understand the Framers' intent in protecting the right of confrontation to be subject only to those statements made when police are not responding to an ongoing emergency, then neither the Court's decision in Davis or Crawford cites it. What Crawford did state was:

"First, the principal evil at which the Confrontation Clause was directed was the civil law mode of criminal procedure, and particularly its use of ex parte examinations as evidence against the accused. It was these practices that the Crown deployed in notorious treason cases like Raleigh's, that the Marian statutes invited, that English law's assertion of a right to confrontation was meant to prohibit, and that the founding-era rhetoric decried. The Sixth Amendment must be interpreted with this focus in mind."

The civil law mode of criminal procedure allowed justices of the peace or other officials to examine suspects and possible witnesses before trial and then, occassionally, those examinations were read in court in lieu of live testimony.

How does that practice, which Crawford strongly condemned, different from the practice playing a 911 tape as in Davis? In the majority opinion written by Justice Scalia, there is no direct answer, but an inference that a statement made during the contemporaneousness of an emergency is somehow not "testimonial" but the same statement made a mere few minutes later, magically becomes testimonial even though it is made by the same speaker, to the same listener, and for the same purpose.

Of course, there is no historical precedent for the court's new "emergency" non-testimonial finding because the ability for the government to learn and investigate crimes as they occurred was largely impossible given the techonology at the time of the Sixth Amendment's confrontation clause's historical founding.

However, if a hypothetical inquistitor at Sir Walter Raleigh's trial (the focus of much of Court's thoughts as expressed by Justice Scalia in Crawford), were asked, the inquistitor would no doubt say that the statements made by witnesses against Sir Raleigh were made during the ongoing emergency of the State trying to respond to an alleged treasonous plot.

Instead, by finding the statements in Davis to be non-testimonial, the Court has essentially found that as technology makes it easier and quicker for the State to learn what its citizens are doing, that technology waters down the protections that have been the bedrocks of our judicial system.

Davis ignores the history of the right to confrontation that were so revered in Crawford, and ignores the basic fact that why a statement was made is not as key to whether it is testimonial as much as how the statement was used. To Davis, the issue was not when the statement was made, but the fact that he was being convicted by the testimony of a tape recorder instead of a live witness who should have been available at trial.

Thursday, June 15, 2006

Blackwell's free-market ideas aren't worth much on the free market

Three months ago, Republican Gubernatorial candidate Kenneth Blackwell published a book titled Rebuilding America which he co-authored with "Unfit for Command" Swift Boat author, Jerome Corsi, Ph.D.

Here's the marketed description of the book:

After four decades of failure of the welfare state, Blackwell and Corsi argue for its phase-out through applying new techniques of public finance—not dependent upon new taxes—to enlist financial institutions in deploying new urban capital into rebuilding our cities. The goal is to work with established and newly formed corporations that integrate jobs and re-training programs to advance an "ownership society" in which families can thrive.

Rebuilding America is meant to be a blueprint for John Kenneth Blackwell's campaign for governor of Ohio. In it, he argues that as governor of Ohio he can implement the action plan described in the book as an alternative, conservative model for attacking urban poverty that can be applied in other states as well.

So how is the book doing? Despite being heavily promoted on Blackwell's blog and in Blackwell's appearances on national conservative talk radio, not so well. It ranks at #263,298 on Barnes & Noble's site which curiously has a cover that does not plaster Ken Blackwell's photo on the cover. On average, the major online book retailers have already slashed the book's price by nearly 40%.

This conservative clearinghouse site is offering the book at half-price and three free issues of WND's (World Net Daily's) monthly print magazine, Whistleblower, if you buy Blackwell's discount rack political treatise.

And on that free-market nirvana, e-bay, you could buy the book for $2.50, if you don't later get outbid in the next two days.

So not even the free market supports Ken Blackwell's extreme, out-of-touch political ideas . . .

Wednesday, June 14, 2006

Does Ken Blackwell think he's running for Governor of Colorado?

Why does Ken Blackwell think whatever is done in Colorado should be done in Ohio?

First, Blackwell introduces TEL as a constitutional amendment because it's been so popular in Colorado the voters have voted to freeze its effectiveness.

Now Blackwell wants to change Ohio's financial aid programs to be like Colorado. Unlike TEL, Blackwell's new financial aid platform is lacking in details, but given what is known about the Colorado plan, it should prove to be as popular as TEL was.

According to the Toledo Blade, Blackwell's proposal is to mimic a college voucher program recently enacted in Colorado. How does it work? Well, the Colorado system basically gives financial aid in the form of a voucher instead of giving the aid to the school. The recently graduating high school student could then use the voucher at any public or private school of higher education.

And how does this voucher help with the rising cost of college tuition? It doesn't.
"In fact, the tuition they pay will be the same. It doesn't make college less expensive; it is just a different funding mechanism," said Pam Shockley-Zalabak, chancellor of the University of Colorado in Colorado Springs, who supports the voucher.

And how has the program worked in Colorado? Well, thanks to Colorado's own version of TEL, tuition has continued to increase at the rate of 10 to 15% a year as state funding for universities has fallen roughly 12%. Meaning that Colorado students have had to pay more to get the same education. That's about the same result already occuring here in Ohio. So, the vouchers have no positive impact whatsoever on slowing the increasing costs of tuition.

So why would Blackwell support such an initative? Well in Colorado.....

Under the voucher program, schools would no longer be technically state funded, and could pursue enterprise status - freeing them from a wide variety of state regulations regarding hiring, firing, tuition, contracts, and more. Some say it will allow schools to operate more like a private business.

In other words, Blackwell wants the voucher programs to end collective bargaining, break up unions, end tenure, and prevent the legislature from setting caps on tuition increases.

There's a better way. And it's a proposal DESIGNED to provide actual assistance for families struggling with the increasing costs of higher education. It's Congressman Ted Strickland's plan for an Ohio Knowledge Bank.

If Ken Blackwell loves Colorado so much, maybe he should have run for Governor there.

Blackwell flip-flops on whether he's flip-flopped on abortion

Cross-posted at: Buckeye State Blog

In today's Right Angle Blog posting by jamesrhodes, the blog attempts to defuse the allegations leveled here and elsewhere that Ken Blackwell is yet again flip-flopping from the extremist positions Secretary Blackwell took during the primary.

The defense is not that Blackwell has changed his position, but that he just wants the current "pro-life" protections such as parental notification, etc. to remain in place during any possible court challenge of Brinkman's bill.

So they're saying that Blackwell is 100% Pro-Life and hasn't changed his position.

Again, here's Ken Blackwell in January:

Q: If Roe v. Wade were to be overturned, would you sign a law that would outlaw abortions in the case of rape, incest or to save the life of the mother?
A: Yes.
Q: Including the life of the mother?
A: Yes.
And here's Candidate Blackwell's campaign statement from today's Toledo Blade:

Democrats yesterday accused Mr. Blackwell of backing off on support for a total ban voiced during the GOP primary.

Blackwell spokesman Carlo LoParo said the candidate would support the bill if amended to protect current Ohio regulation of abortion if a court strikes it down and if it includes the exception for the life of the mother.
Mr. Rhodes, I believe those aren't just sandals, Mr. Blackwell is wearing.......

Ken Blackwell: He's consistently inconsistent.

Tuesday, June 13, 2006

What does Ken Blackwell stand for???

First the Commerical Activity Tax (CAT), then his own Tax Expenditure Limitation (TEL) amendment, and now Ken Blackwell is reversing his position on abortion since the primary.

(Hat tip: Buckeye State Blog)

Five months ago, the following dialogue took place in an interview with Ken Blackwell by Columbus' Other Paper (article not archived on its site, so I have to cite to this other blog):

Q: If Roe v. Wade were to be overturned, would you sign a law that would outlaw abortions in the case of rape, incest or to save the life of the mother?

A: Yes.

Q: Including the life of the mother?

A: Yes.

Now comes House Bill 228 which would criminalize all abortion, including transporting a women across state lines for an abortion.

And what does Ken Blackwell say about this bill?
From today's Cincinnati Enquirer:
"Yes, if amended. The legislation removes current pro-life protections in the law because it enacts a total ban. I would support an amended version with pro-life protections reinstated if the legislation is later challenged and overturned in court."
So, which is it, Ken?!? Also, can anyone crack Blackwell's conservative code to decipher what he means by saying "pro-life protections are reinstated"? What the heck is he referring to?

I'll say this, at least, Blackwell is consistently inconsistent.