Wednesday, June 02, 2010

Bilski Watch: Timing of Supreme Court Decisions - Patent Law Blog (Patently-O)

Bilski Watch: Timing of Supreme Court Decisions - Patent Law Blog (Patently-O)

Q&A: Is Israel's naval blockade of Gaza legal? | Reuters

Q&A: Is Israel's naval blockade of Gaza legal? | Reuters

What Legal Documents are Required for Websites?

See Al Taylor's What legal documents do I need for my new website? at the Web Law Blog Website Law.

English Website Law - UK and EU Requirements for Web Developers and Webmasters

Website Law is "a website dedicated to helping web developers and webmasters ensure that their sites comply with the varied and ever-changing requirements of English law". Take a look.

U.S. Supreme Court Limits Miranda Overreach as Justice Kennedy Shifts the Country in the Right Direction to Stop Senseless Mollycoddling of Criminals based on Hairsplitting Legal Technicalities

Does it matter if a U.S. Supreme Court decision would mean that a murderer would go free?
It matters to the average citizen. Good law brings the right results. Bad law brings bad results.

Todd Spangler of the Washington Staff of the Detroit Free Press in Supreme Court reins in Miranda rules in case from Southfield summarizes a recent 5-4 U.S. Supreme Court decision in the case of Berghuis v. Thompkins which holds that informing a suspect of his Miranda rights does not immunize him from the consequences of his actions if he does talk.

The whole concept of Miranda warnings is that suspects can not be forced to talk and that they have the right to be informed of this right, which WAS done in the instant case. The issuance of Miranda warnings does not, however, mean that law enforcement officials can not further interrogate suspects in the course of their duties. There have to be sensible limits on the rights afforded to criminals and a balance found for the rights of society.

As written by Lyle Denniston at SCOTUSblog:
"By a 5-4 vote, the Court for the first time made two things clear about Miranda rights: first, if a suspect does not want to talk to police — that is, to invoke a right to silence — he must say so, with a clear statement because it is not enough to sit silently or to remain uncooperative, even through a long session; and, second, if the suspect finally answers a suggestive question with a one-word response that amounts to a confession, that, by itself, will be understood as a waiver of the right to silence and the statement can be used as evidence. Police need not obtain an explicit waiver of that right. The net practical effect is likely to be that police, in the face of a suspect’s continued silence after being given Miranda warnings, can continue to question him, even for a couple of hours, in hopes eventually of getting him to confess."
There is nothing wrong with that -- as police try to bring a murderer to justice. The balance of rights is thereby not adversely affected, quite the contrary, that balance is improved. Essentially, the suspect was outsmarted by the police officers doing the questioning, and that is a desired result. The police gave the suspect the opportunity to confess to his crime in the face of the Almighty, and he did.

Once again, Justice Kennedy, who wrote the opinion, was the swing vote on the Court and the nation can rejoice to have such a smart, practical man in this particular position of power.

As Kennedy writes in the majority opinion:
"About 2 hours and 45 minutes into the interrogation, Helgert asked Thompkins, “Do you believe in God?” Id., at 11a, 153a. Thompkins made eye contact with Helgert and said “Yes,” as his eyes “well[ed] up with tears.” Id., at 11a. Helgert asked, “Do you pray to God?” Thompkins said “Yes.” Id., at 11a, 153a. Helgert asked, “Do you pray to God to forgive you for shooting that boy down?” Id., at 153a. Thompkins answered “Yes” and looked away. Ibid. Thompkins refused to make a written confession, and the interrogation ended about 15 minutes later. Id., at 11a."
Miranda should not prohibit that oral confession. As it is, the Miranda decisions still give far more rights to criminals than they should.

Law-abiding citizens in communities across the nation ALSO have rights to be protected and the ability to get dangerous criminals off the streets is one of those rights. We all have an interest that police officials have essential tools of fact-finding available to them. The law can not be that a murder suspect freely says that he "did it" and that he goes free BECAUSE his Miranda rights WERE previously made known to him. The four Justices in the minority have simply misunderstood their own Court's Miranda standard and have misinterpreted the U.S. Constitution which states only that people can not be forced to testify against themselves. That Constitutional provision does not mean that people are immunized from their own statements or that police can not try to outsmart suspected criminals by their questioning.

As for Justice Sotomayor's dissent, one can only hope that in the course of her sojourn on the Court that she develops the ability to remove herself from her own ethnicity and not put herself into the position of the generic "poor" minority suspect allegedly being coerced by evil police, as she obviously does in her dissent. The standard that Sotomayor would have the Supreme Court adopt is that the suspect must come out and say AT THE LEAST, preferably in writing, "If I confess to the crime, I mean it, and I am hereby waiving my right to keep silent. Honest. Truly. No lie. You can believe me. This is it. The real thing." This takes Miranda to an absurd extreme. Sotomayor must in the future try to confront the REAL world in which criminals use every method possible to evade responsibility for their crimes, and, in that knowledge, should interpret the U.S. Constitution in a sensible way so that murderers do not roam the nation's streets.

As for the legal standard involved, there is a difference between "coercion" and "friendly persuasion".

Besides, the mere fact of arrest is already a substantial coercion. If you stand under arrest, you are already "coerced". What the 5th Amendment says is that we can not beat people under arrest over the head to make them confess to crimes, even if they committed them, as is the case in 99% of criminal prosecutions. Everyone understands that standard. Everything beyond that is NOT required by the 5th Amendment, regardless of what Sotomayor has written, who is trying to defend an overreaching Miranda standard that is badly in need of reform.

The great overreach of Miranda is in part accounted for by the Rehnquist Court and the late Chief Justice Rehnquist, who, as Jeffrey Rosen writes at The Atlantic in Rehnquist the Great?, was apparently a great administrator, but, in our opinion, not a very good judge, shifting his early highly contrary position on Miranda to a later position of defeatist appeasement, a sign of a weak character, described by some as a "passive" nature. He was hardly a man to set the U.S. Supreme Court and the country on the right track, nor did he do so, leaving a mountain of unfinished business which the Roberts Court is also not dispatching yet with the definiteness that it should. Much needs to be corrected, and the decision in Berghuis v. Thompkins is one of those corrections. Mollycoddling of criminals must end. You have to weed the garden.

The SCOTUS Whiz Kids? The Supreme Court Lineup Has its Eyes on the Ball, Baseball That Is - Matching the SCOTUS Justices with their Positions

Adam Liptak at the New York Times Sidebar notes in This Bench Belongs in a Dugout that the United States Supreme Court has a lineup that is packed with baseball fans, and will be even more so if Elena Kagan is confirmed to the Court, but perhaps this is not surprising, for as Liptak notes:
"There have been more references to baseball in federal and state judicial opinions over the last century or so than to any other sport, though golf is a surprisingly close second."
Here is how LawPundit would position the current Supreme Court Justices and Elena Kagan, "the Justice in waiting" on the baseball field (together with links to baseball players that could be seen as "distantly" related, either by name, fame, inclination, position or, perhaps, not at all):
  • On the mound, pitching - Chief Justice John Glover Roberts, Jr. With that middle name, Roberts is obviously a great fielding pitcher and he has a namesake in Hall of Fame pitcher Robin Roberts who led the "Whiz Kids" to the pennant in 1950. Can the same be said for SCOTUS in 2010? Bilski still awaits us.
  • Behind the plate, catching - Justice Antonin Gregory Scalia. He might be compared with Lawrence Peter "Yogi" Berra who was famed for quips like "It ain't over 'til its over" to which Scalia might retort "If it's original, it's original".

    THE INFIELD
  • At 1st base - Justice Samuel Anthony Alito, Jr. who might be compared to JosĂ© Alberto Pujols Alcántara, i.e. Albert Pujols, the "most feared" right-handed batter in baseball. Alito has been viewed as a "hard right" conservative on the Supreme Court. According to the Wikipedia, players at first base do not require the range of other players but obtain the most assists, also being covered defensively at 1st base by the pitcher, in this case, the Chief Justice.
  • At 2nd base - Justice Stephen Gerald Breyer is the intellectual pragmatist on the Supreme Court. Similarly, the 2nd baseman in baseball has to be very smart to be a good player. BaseballSkillAids.com writes: "Playing second base on a baseball team requires the player to be quick, sure handed and very smart about the game of baseball and the different situations that develop during the course of a game." Famous second basemen were Jackie Robinson and Rogers Hornsby.
  • At 3rd base - Justice Clarence Thomas. As written at Supreme Court Watch at the pbs.org Online NewsHour by Maureen Hoch: "While on the high court, Thomas has been a solid member of the far right wing bloc" and this is the furthest right infield position, seen from his perspective. Fewer hall of famers come from 3rd base than any other position. As Coach Baseball writes: "The tendency at third base will be for the player to want to stand directly beside the bag." Famous 3rd basemen were Mike Schmidt and Brooks Robinson.
  • At Shortstop - Coach Baseball writes: "Shortstop is the most active position of the infield so it is a key defensive position.". As written at the Wikipedia, "Shortstop is often regarded as the most dynamic defensive position in baseball, because there are more right-handed hitters in baseball than left-handed hitters, and most hitters have a tendency to pull the ball slightly, so more balls go to the shortstop than any other position." Here we place the currently retiring Justice John Paul Stevens, who has up to now led the left wing of the Court against all the right-handed hitters. Justice Stevens was 12 years old in the year 1932 and was a spectator at the Wrigley Field baseball game in which Babe Ruth called his famous home run shot. Stevens will be replaced by "Justice in waiting" Elena Kagan, who was already called "Shorty" as a U.S. Supreme Court clerk by Justice Thurgood Marshall. She will have to continue in leading the liberal wing where Stevens leaves off. Famous shortstops were Cal Ripken, Jr., Ernie Banks and Honus Wagner.

    THE OUTFIELD
  • In Left Field - Justice Ruth Joan Bader Ginsburg. Left fielders tend to have the weakest arms in the outfield because they do not need to throw as far to keep runners from advancing a base. However, they also have to field more balls from right-handed hitters than other outfield positions.Ted Williams was a famous left fielder.
  • In Center Field - Justice Anthony McLeod Kennedy is the "swing Justice" between the left-leaning and the right-leaning factions on the Supreme Court and just as a center fielder in baseball, Kennedy must cover the greatest distance in the course of his play. Talent at this position can lead to greatness. Famous players such as Ty Cobb, Joe DiMaggio, Mickey Mantle, Willy Mays, Duke Snider and Tris Speaker were center fielders.
  • In Right Field - Justice Sonia Maria Sotomayor, as the Wikipedia writes: "In 1995, she issued a preliminary injunction against Major League Baseball which ended the 1994 baseball strike,"  thus already insuring Justice Sotomayor's place in baseball's unofficial Hall of Fame. As the Wikipedia writes: "Of all outfield positions, the right fielder often has the strongest arm, because they are the farthest from third base." In the Little Leagues the right fielder is viewed as a position for weaker players because the hitters are mostly right-handed and pull the ball into left field. In the major leagues, that assessment changes, and some of the greatest baseball players of all time played right field, including Babe RuthHenry "Hank" Aaron and Roger Maris.  A position for the home run hitters.
Play ball!

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