These days, anything the police wish to do is not only justified, but considered a-ok, no problemo, what-the-hell-are-you-complaining-for?-we’re-just-trying-to-keep-everyone-safe. Anderson Cooper goes so far as to complain about stupid people (kids, in this case) who “waste time” by protesting the abuse of their civil rights.

In my job as a defense attorney, I’m having to file motions to obtain the most basic of my clients’ rights. People who have been arrested, apparently, no longer have them. Just because they were arrested. Forget preliminary examinations; forget trials; forget due process of law. Our nation no longer follows the rule of law. Instead, we have the rule of law enforcement. And anything goes.

Sheriff wants to put intercom systems into all interview rooms where attorneys meet with clients, so they can listen in at the flip of a switch? So what. It’s for “safety” purposes. Police want to invade parties because they see kids drinking from red cups? So what. “Safety” is the issue. Our President wants to invade countries that have not attacked the United States? So? Again, it’s safety.

Perhaps it wouldn’t be so bad if safety actually mattered. But it doesn’t. “Safety” is the pretense that allows the State to do whatever it wants. The State may violate any law — it matters not that the laws may have been enacted hundreds of years ago to constrain the State.

No one, no law, no Constitution must stand in the way of “safety.”

There ought to be limits to freedom.

Since then, he’s acted as if this were a campaign promise — and one which must be kept at all costs. We now have more governmentally-imposed limitations on our freedom than the days of the real King George, against whom the colonies that would become the United States fought.

Today, the print edition of the Fresno Bee (p. A16, rightmost column [how appropriate is that?]) shows Bush criticizing the Republican-controlled Congress because they refused to allow direct-funding of “faith-based initiatives.” (Direct funding of such programs has been repeatedly ruled unconstitutional by the courts.) The President said,

It’s important for our government to understand that…faith-based programs only conform to one set of rules, and it’s bigger than government rules.

The President of the Land of the Formerly-Free, having previously determined that there should be limits to freedom, is now advocating that he wants to use government money to fund programs run by people who do not — in fact, according to him, cannot and should not — follow government rules, because they follow some other rules that are “bigger” than the rules of the government.

Where does this kind of thinking stop? What kind of country are we once we agree to fund and support these religious groups, which will not answer to us because they follow a set of rules which is bigger than we, the people?

“It’s important for government to understand” this! Yes, Mr. President. It is. And it’s important that the government — that is, we, the people — vote to remove leaders who advocate having us give money and support to those who will not obey our laws.

As I said to my wife last night, a judge who doesn’t understand that he is violating the law even when his own peers have explained it should not be allowed to remain in office. This is especially true concerning fundamental, well-settled issues not just of constitutional law, but of civil procedure and the particular judge’s place within the system of laws of the country in which he expects to practice.

Before going on, let me note that even though I am not a christian, none of my writings, including this one, should be taken to be anti-christian. None of the writings I’ve done on this topic have been intended to be “religious” commentary either on my own or anyone else’s religion. My focus is specifically on the legal issues.

To understand why Moore had to be removed, bear with me for a moment and think this all the way through. I promise not to slam any religious beliefs of you, Moore, or anyone else in the process. That not only isn’t really polite, but it’s completely unnecessary — especially in this situation.

You see, the problem isn’t with Moore’s religious beliefs. In considering whether or not someone is fit to serve as a judge, it is his beliefs about the law that matter. And there are several reasons here why Moore is unfit to be a judge, none of which have anything to do with whether or not his religious beliefs constitute veridical views of the universe or not.

The real issues are:

• Who decides what our society will and will not allow?
• What place does the judiciary play in the United States of America?
• Is there an authoritarian hierarchy in the U.S. judiciary in regards to issues such as the one arising in this case?
• Is the law applicable to Moore’s actions settled?
• And, finally, is a judge who refuses the strictures of the law of the United States of Amerca fit, or unfit, to hold his judicial seat?

In the debate about Moore’s acts, there are many more issues that could be identified than just these. For example, there are the specific questions of whether allowing the display of religious artifacts in a courthouse actually constitutes an endorsement of the religion. U.S. law has already decided that this is the case; I argue below that Moore’s failure to recognize this is one reason Moore is unfit to be a judge in any U.S. court, whether state or federal. But this and other issues could easily be debated at great length. I’ve tried here to focus specifically on issues as to why Moore was rightly removed from office.

As I’m gearing up for mid-term examinations (and a final exam in Basic Tax Law), I will sadly only touch superficially on these important questions. For more information, be sure to take a look at some of the books I’ll list at the end of this post. Purchasing books via my Internet site is also an excellent win-win-win proposition: You get a useful book at a good price; Amazon gets a paying customer; and I get a little help paying my website costs.

What May Society Control?

One question which does perhaps deserve some attention before looking at the list of issues above is an age-old question: “What may/should societies rightly control with respect to (human) behavior?”

In the debate that swirls around former-judge Moore, for example, christians claim — with some justification — that their right to worship their god as they wish has been impeded. According to them, it is a necessary component of their religious system that they place religious artifacts which they believe honor their god in public locations, such as courthouses. Assuming this is properly identified as a “right” — another question not really considered in this article — there can be no doubt that their right to do this is being impeded. The fact that it is being legally impeded — that is, in accordance with the law of the United States — does not mean that it is any less impeded.

Should, or may, societies properly impede the rights of others?

If christians need to place religious artifacts in public locations such as courthouses, then they are correct that their rights are being impeded. As in most situations involving “rights,” however, we have here a sword which cuts both ways.

One reason for this is that public spaces are finite. There are only so many of them and they are only so big. If we allow the utilization of public spaces for one purpose, we necessarily reduce its utilization for another. More importantly in this situation, if we allow christians to use the space to make more of their monuments visible, we necessarily abolish the “rights” of others not to be exposed to (what they may well think are) idols. I am not suggesting that we do the following, but imagine that christians were forced to enter courthouses decorated with demonic symbols or mildly-bacchanalian images.

“But that’s different!,” you exclaim. Actually, the real reason you think it’s different is because in one case you are the one being offended; in the other case, others are being offended. There fact that there may be anywhere from a few to a gazillion others who agree with your views doesn’t change that fact. Millions of Filipinos love to eat balut. I doubt that would make it any less gross or more palatable to the average American.

Any time you have more than a few people with competing and incompatible views, then, there has to be some method of arbitration, some way of deciding which of the views will get air-time, so to speak. Otherwise, even peace-loving followers of Jesus may potentially turn to violence to endorse their preferences.

It would seem then that society should control some behaviors, including even some behaviors you may think innocuous (or beneficial!), such as placing monuments to the version of god which has historically predominated in American “culture.”

How Does “Society” Decide?

While perhaps we could have a single individual who would decide how everyone was to act, most people would consider it more “fair” to allow for decisions based to some extent on the will of the people. Of course, in a truly fair society, we wish to be sure that the majority does not completely crush the minority, especially when we may be talking about matters of preference. (This is one reason the U.S. used to be a Republic, rather than a true Democracy [a.k.a., "a mob"] and why even now it still has remnants of a republic, especially as pertains to the legal system.)

The republican method — and I’m referring to the methodology of our form of government, not to the Republican party — involves legislators who have been elected by the people. “Legislator,” according to Merriam-Webster’s dictionary, means “one who makes laws”; the secondary definition as “one who constantly campaigns for funds to stay in office” is a relatively recent development on the American landscape. Legislators propose legislation based upon the perceived desires of those who have elected them. The way our Founding Fathers set things up, the perceived needs of the electorate was filtered through the (theoretical) wisdom of the legislators in a way that hopefully avoided the more negative aspects of Democracy — that is, those aspects that cause some to refer to Democracy as “mob rule.”

In the United States (and in some other countries now) there is a document: The Constitution of the United States. This document has been periodically amended, most notably right after it was written, when the Bill of Rights was added as the first Ten Amendments. These documents are like a corporate charter, in a sense, indicating what the Founders of this country established as the primary rules by which our country is to be governed. More than two-hundred years of experience have shown the wisdom of the principles contained within these documents. As a side note, it always amazes me when people start thinking about — willy-nilly — tampering with the freedoms outlined in this document by introducing more restrictive amendments. These documents, then, place limitations on the kinds of laws our legislators may pass because, after all, it would make no sense to allow them to pass laws which abrogate principles which have stood the test of two-hundred-plus years!

Where does the Judiciary fit in this scheme?

The legislators, then, are responsible for the creation of new laws. They do so with the limitations placed upon them by the Constitution, its Amendments and the interpretation of these which has developed through the years.

To be sure, the Founding Fathers did not intend a complete separation of powers.

…Madison admonished at the founding that while our Constitution mandates that “each of the three general departments of government [must remain] entirely free from the control or coercive influence, direct or indirect, of either of the others,” Humphrey’s Executor v. United States, 295 U.S. 602, 629 (1935), the Framers did not require — and indeed rejected — the notion that the three Branches must be entirely separate and distinct. See, e.g., Nixon v. Administrator of General Services, 433 U.S. 425, 443 (1977) (rejecting as archaic complete division of authority between the three Branches); United States v. Nixon, 418 U.S. 683 (1974) (affirming Madison’s flexible approach to separation of powers). Madison, defending the Constitution against charges that it established insufficiently separate branches, addressed the point directly. Separation of powers, he wrote, “d[oes] not mean that these [three] departments ought to have no partial agency in, or no controul over the acts of each other,” but rather “that where the whole power of one department is exercised by the same hands which possess the whole power of another department, the fundamental principles of a free constitution, are subverted. Mistretta v. United States (1989) 1 Fed. Sent. R. 377.

After all,

[t]he actual art of governing under our Constitution does not and cannot conform to judicial definitions of the power of any of its branches based
on isolated clauses or even single Articles torn from context. While the Constitution diffuses power the better to secure liberty, it also contemplates that practice will integrate the dispersed powers into a workable government. Tanielian, Separation of Powers and the Supreme Court: One Doctrine, Two Visions (1995) 8 Admin. L.J. Am. U. 961, 984.

As noted, the purpose of the separation of governmental functions into three somewhat distinct branches was done “the better secure liberty.” And, as the Supreme Court noted in Marbury v. Madison in 1803,

It is emphatically the province and duty of the judicial department to say what the law is. Those who apply the rule to particular cases, must of necessity expound and interpret that rule. If two laws conflict with each other, the courts must decide on the operation of each. Marbury v. Madison (1803) 5 U.S. 137, 177.

While legislators make laws, the judiciary is responsible to interpret them. (See also, Pittman, The Federal Arbitrarion Act: The Supreme Court’s Erroneous Statutory Interpretation, Stare Decisis, and a Proposal for Change (2002) 53 Ala. L. Rev. 789, 800 ["originalists believe that the appropriate role of the judiciary is the role of an interpreter of statutes that Congress has enacted, and not the role of a judicial legislator that creates its own laws through statutory interpretation"].)

The Quasi-Hierarchical Structure of the Judiciary

Fine. So the legislators make laws and the judiciary interprets the law — both bound by the limitations of the Constitution and its Amendments.

Yet the United States has this odd duality. Although united, each state is, for purposes of internal governance, a quasi-independent entity. There is the federal government and there are the various state governments; there is a federal judiciary and there are the various state judiciaries.

So in a situation such as that presented by the former judge Moore, who sat as a member of his state’s judiary and whose actions were ruled unconstitutional by a federal court judge, who wins? After all, while for many Americans the federal government is the “larger” and “more powerful” system of government — even if they are unaware of the Supremacy Clause of the Constitution — a sense of autonomy arising from a juxtaposition of principals of vehement freedom and substantial fairness informs us (even if the law didn’t, though it does) that there are nevertheless times when the Supreme Court is stripped of jurisdiction by the “counter-supremacy” effect of states’ rights. (See Althouse, How to Build a Separate Sphere: Federal Courts and State Power (1987) 100 Harv. L. Rev. 1485, 1491.)

It appears to be the case (pun intended) that sometimes a federal court trumps a state court while at other times the state court trumps the federal court. While this is true, the decision as to which court trumps which is not a game of eeny, meeny, miny, moe. Once again, the Constitution of the United States comes to our aid.

This Constitution, and the Laws of the United States which shall be made in Pursuance thereof; and all Treaties made, or which shall be made, under the Authority of the United States, shall be the supreme Law of the Land; and the Judges in every State shall be bound thereby, any Thing in the Constitution or Laws of any State to the Contrary notwithstanding. - Constitution of the United States, Article VI, Clause 2.

The Supreme Court has noted that,

Article VI of the Constitution makes the Constitution the “supreme Law of the Land.” In 1803, Chief Justice Marshall, speaking for a unanimous Court, referring to the Constitution as “the fundamental and paramount law of the nation,” declared in the notable case of Marbury v. Madison, 1 Cranch 137, 177, that “It is emphatically the province and duty of the judicial department to say what the law is.” This decision declared the basic principle that the federal judiciary is supreme in the exposition of the law of the Constitution, and that principle has ever since been respected by this Court and the Country as a permanent and indispensable feature of our constitutional system. - Cooper v. Aaron (1958) 358 U.S. 1, 18 (78 S. Ct. 1401, 1409-1410; 3 L. Ed. 2d 5, 16-17).

Article III (Section 2, Clause 1) of the Constitution said that the “judicial power” of the United States over “all Cases, in Law and Equity, arising under this Constitution, [and] the Laws of the United States” was (Article III, Section 1) “vested in one supreme Court, and in such inferior Courts as the Congress may from time to time ordain and establish.” The Framers of the Constitution thus set things up in such a way that the federal government, via judicial review, had authority over the States. (Founding Father James Madison even went so far as to advocate giving Congress itself veto power over state laws and the Virginia delegates to the Constitutional Convention initially proposed such authority for “all laws passed by the several states, contravening in the opinion of the National Legislature the articles of Union.” Kramer, The Supreme Court 2000 Term: Foreword: We The Court (2001) 115 Harv. L. Rev. 4, 60-61.)

Where there have been conflicts between religious groups and state regulations, the application of the authority of the federal courts over both has been virtually unquestioned. (See particularly Shifrin & Choper, The First Amendment: Cases – Comments – Questions (3d ed. 2001), ch. 12, § I, “Conflict with State Regulation”.)

And, finally, Title 28 of the U.S. Code, covering the judiciary and judicial procedure, § 1257, says the Supreme Court is authoritative (among other times) whenever “any title, right, privilege or immunity is specially…claimed under the Constitution” while § 1331 extends authority for federal questions — those “arising under the Constitution, law or treaties of the United States” — to all federal courts.

Moore Tries To Be More

As the Alabama Chief Justice, Moore had to know not only the law relating to these procedural issues, but also that the Supreme Court has repeatedly rejected governmental sponsorship of religious displays. (See, for example, County of Allegheny v. American Civil Liberties Union (1989) 492 U.S. 573 [109 S. Ct. 3086; 106 L. Ed. 2d 472]. For more on the establishment question, see my other posts on the subject.) As a first-year law student, I was already well-aware of the historical record regarding the position of the Supreme Court and lesser Federal Courts on this subject.

If this wasn’t enough, Moore should have taken a strong hint from recent events directly involving his own case: The Supreme Court refused to hear the case. The impact of this was that the lower federal court ruling stands. Essentially, the Supreme Court is saying, “We’re not really going to waste our time on this.” That’s about as settled as the law gets.

Fit No Mo[o]re

Moore’s public refusal to obey a court order “undercuts the entire workings of the judicial system.”

“What message does that send to the public, to other litigants? The message it sends is: If you don’t like a court order, you don’t have to follow it,” he said. “Commandments Judge Expelled,” CBSNews.com, November 13, 2003.

I couldn’t have said it better myself. Or, as CBS News Legal Analyst Andrew Cohen put it,

The fact is that thousands of judges across the country every day enforce and obey laws that they don’t necessarily agree with. I think the panel wanted to send a message that no one, not even the chief justice of a state, can decide for himself which laws to obey and which to disobey.

Ultimately, it doesn’t matter whether Moore’s religious views are right or wrong. Certainly no one will stop him if he decides now to go into the ministry, start a religious movement, or decides to build a Crystal Monument to the Ten Commandments in Southern California. I, for one, would not bother to argue religion with him — I don’t care about his religious viewpoint one way or the other.

The question for me and many others has always been a legal question and, perhaps, on some level, a philosophical belief that a judge who cannot or will not perform his job because it conflicts with his conscience should not be sitting in that position.

There are plenty of openings in the Church for men like him. Or he can go into politics, where doing what is right has never taken precedence over doing what is popular. But whatever else he does, he clearly should be a judge no more.

One of my favorite parts of the story is a quote (see below), from Andrew McCarthy, a former federal prosecutor. About an hour after an interview of Dr. Butler, the court slapped a gag order on the participants in the case. Apparently, word got out that word got out. The government in this case cannot afford for the public to hear Dr. Butler’s side of the story.

Perhaps I’m being a bit cynical here: After all, courts do sometimes worry about things like polluting the jury pool. It’s interesting to note, however, that these gag orders seem to come more often after the defense in government cases says something to reporters which seems to exonerate the suspect. In nearly all the cases I’ve seen where this happens, the defense stated facts which, if true, shocked the conscience. But I’m ahead of myself. The McCarthy quote strains the bounds of logic, so let’s get to it.

“He?s going to try to convince the jury that he?s been railroaded and that the FBI agents are the dishonest ones in the equation,? says McCarthy. ?So, the jury?s going to be asked to make a very simple decision: who?s telling the truth? Is it the multiple fraudster who?s telling the truth? Or is it the FBI agents, who don?t have a reason to lie?” — Unless otherwise specified, all quotes in this blog entry come from the CBS News website story, “The Case Against Dr. Butler,” dated October 19, 2003.

First of all, among other things, the jury is not going to be asked to make a simple decision. They’re going to be asked to decide what Dr. Butler actually did. To make that decision, they’re going to have to understand how biological research is normally done. They’ll need to get into the intricacies of the handling and transport of specimens, both inside and outside the lab. They’ll have to learn what a reasonable scientist in Dr. Butler’s circumstances would do. Anyone who thinks this is simple is either an idiot or has a position in the Bush administration — but that’s a redundancy, and unnecessary to my main argument, so let’s strike it. Most of us are not familiar with biological research issues. In order to decide the factual issue of what Dr. Butler did, the jury is going to have to be taught enough about the handling of biological materials in a research environment to make an intelligent decision.

Secondly, McCarthy (how appropriate that name seems) asks whether we’re going to trust “the multiple fraudster.” It should go without saying that there has been no evidence yet that Dr. Butler, who the article notes is revered worldwide by other scientists, is a “fraudster” of any sort, let alone that he is “a multiple fraudster.” In fact, the primary import of the article is that Dr. Butler has been charged and the parties are going to court to determine the veracity of these and other allegations against Dr. Butler. In the United States of America — at least now and for the foreseeable future — the assumption is that charged parties are innocent until proven guilty. So to pose the question the way McCarthy did is equivalent to asking, “When deciding whether or not Dr. Butler is a multiple fraudster, who are you going to believe? The FBI agents? Or the guy we already know is a multiple fraudster?” If the question is whether he is or is not a multiple fraudster, one cannot start with the view that he is a multiple fraudster. It begs the question.

Thirdly, McCarthy says that the FBI agents have no reason to lie. This, of course, is one of the other issues which a jury needs to decide. Do FBI agents lie? One would hope they do not. But if we can assume that FBI agents do not lie, then why did FBI Director Louis Freeh order 500 FBI agents to undergo lie detector tests in March 2001? (You can read about that here, on CBSNews.com.) McCarthy may be willing to assume that FBI agents do not lie, but apparently the head of the FBI is unwilling to make that assumption. Nor should he. Human beings sometimes lie when it suits them. Contrary to some evidence and belief, FBI agents are human beings. It’s reasonable to assume that FBI agents sometimes lie when it suits them. One of the questions to be determined here is whether lying about Dr. Butler’s activities would suit the FBI agents. Butler and his lawyer have both offered up reasons to think it might suit the FBI agents to lie. It’s a question for a jury to answer, after an evaluation of evidence presented by both the defense and the prosecution.

One of the allegations here is that the FBI has forced Dr. Butler to make a confession that he lied to them. It’s a useful exercise to ask oneself: Does the FBI ever really do stuff like this? It is, after all, a serious allegation and one we would hope is difficult to believe, especially when talking about things as serious as Homeland Security. After all, if we’re to be truly protected, only the truth will keep us free.

Shortly after the now-infamous 9/11 terrorist attacks on the World Trade Center and the Pentagon, the Washington Post noted:

FBI and Justice Department investigators are increasingly frustrated by the silence of jailed suspected associates of Osama bin Laden’s al Qaeda network, and some are beginning to that say that traditional civil liberties may have to be cast aside if they are to extract information about the Sept. 11 attacks and terrorist plans. — Walter Pincus, “Silence of 4 Terror Probe Suspects Poses Dilemma,” Washington Post (online) October 21, 2001 (emphasis mine).

Among the proposals made by the FBI are that — at least (for now) in situations relating to Homeland Security — torture and forced drugging should be an acceptable method of obtaining information. However, (for now) the Supreme Court of the United States is unwilling to go along with this:

“It is difficult to imagine a situation in which a confession would be less the product of a free intellect, less voluntary, than when brought about by a drug having the effect of a “truth serum.” (Townsend v. Sain (1963) 372 U.S. 293.) In another case, the Supreme Court cautioned, “the blood of the accused is not the only hallmark of an unconstitutional inquisition.” (Blackburn v. Alabama (1960) 361 U.S. 199, quoted in Miranda v. Arizona (1966) 384 U.S. 436.) — DiMiTri, “Who’s the Terrorist Again?,” The Tribal Underground (online), November 4, 2001.

Torture and drug-induced confessions, although apparently proposed by the FBI, are the extreme case. In Minnick v. Mississippi (498 U.S. 146), the FBI merely insisted to a prisoner that he was required to answer questions concerning two charges of murder without being allowed to have his attorney present. In this case, the prisoner already had an attorney and had repeatedly refused to waive his rights or answer any questions without his attorney present. The jailers and FBI agents told the prisoner that he had no choice. Since he refused to sign a waiver of his rights, the prisoner mistakenly believed that anything he said to the FBI agents was not admissible as evidence in a court of law. If he had had an attorney present, he would probably have been advised 1) that this is not true and 2) that he didn’t have to say anything. The Court in Minnick noted that the reason for this rule was to prevent judges and juries from having to make the often difficult determination of whether or not a confession was coerced.

Okay, so maybe the FBI plays a little fast and loose with the truth from time to time. Maybe they aren’t so religious in their observation of constitutional protections in trying to put criminals behind bars. So what?

The Fifth Amendment of the Constitution of the United States states, “No person shall be…compelled in a criminal case to be a witness against himself.” This privilege has been considered an important one since at least the 12th Century. (Mary A. Shein, The Privilege Against Self-Incrimination Under Seige: Asherman v. Meachum (1993) 59 Brooklyn L. Rev. 503, 505.) By the 17th Century, the legal recognition of the right against self-incrimination was almost unquestioned. (Id. at p. 507.) The Founding Fathers — who explicitly rejected the inquisitorial system (Roberta K. Flowers, A Code of Their Own: Updating the Ethics Codes to Include Non-Adversarial Roles of Federal Prosecutors (1996) 37 B. C. L. Rev 923, 930, footnote 41. See also Vincent Martin Bonventre, An Alternative to the Constitutional Privilege Against Self-incrimination (1982) 49 Brooklyn L. Rev. 31.) towards which the United States is today moving — were very concerned about this because they had directly experienced its abuse at the hands of the British Army during the Revolutionary War.

Over the years since the Revolutionary War — and particularly after 9/11 in this now-three-years-old century — Americans have had an uneasy relationship with the rule of law and particularly with the prohibition against self-incrimination. Too often, it appears, criminals are able to abuse the privilege to escape prosecution. Television helps to tweak our emotions and drive our collective animosity towards “technicalities” like the Fifth Amendment prohibition against self-incrimination by showing criminals who are obviously guilty being released “just because” a confession was obtained illegally.

Think about this, though. On television, you’re being shown a situation abnormally manufactured for the express purpose of sucking you into the story; your emotions are deliberately being played. In addition, you’re being shown “evidence” that isn’t available otherwise; typically, you get to actually see the perpetrator committing the crime. Of course the guy is guilty and usually it involves the slimiest of criminals or criminal acts in order to get you all the more worked up. In those television shows, the police are doing a minimal amount of investigative work and so “all they have is a confession.” When the confession gets tossed “on a technicality” (like the police forgot to “mirandize” the suspect or they tricked, tortured, or physically threatened the guy), the whole case collapses.

This is not the way police departments normally operate. Often there is a great deal of investigation; there is other evidence. The confession in these situations usually serves to make the prosecution just that much easier. But it doesn’t mean that without the confession, the criminal is going to go free. Before the police even have someone to confess, they’ve already found some evidence leading them to think he’s done it. In the odd-ball case where someone walks into the police station to confess to a crime when police didn’t even know this person existed, or at least didn’t have them down as a suspect, they’re going to do an investigation to corroborate the confession. If the evidence is strong enough, the confession is superfluous. If it’s not strong enough, the police are either lazy or making assumptions of the sort that can land innocent people in jail.

And not landing innocent people in jail is one of the important goals of the criminal justice system. As Blackstone said in what has become known as the Blackstone Ratio, “Better that ten guilty persons escape than that one innocent suffer.” (Blackstone, Commentaries, 358, quoted in Alexander Volokh, Guilty Men (1997) 146 U. Penn. L. Rev. 173.)

Even Bonventre, who argues for an alternative to the constitutional privilege against self-incrimination, noting the abuses of the McCarthy (no known relationship to the former federal prosecutor quoted above) era during the 1950s states, “It appears that the Privilege, or at least some of its protections, does have lasting value.” (Bonventre, supra, at p. 51.) That lasting value is protecting the freedom and liberty interests of innocent people.

In the case of Dr. Butler, all these things have to be remembered. It’s not going to be a simple decision of deciding whether a fraudster is telling the truth or whether the jury should believe the FBI. It’s going to — first — be a question of what actually happened; that is, what are the facts of this case. Only after that will there be a question of whether or not Dr. Butler is a scientist highly-respected and world-renowned in his field or whether he is a criminal, a “multiple fraudster.”

But more importantly, it’s going to be a question of whether the United States of America follows the rule of law or the rule of force when it comes to the investigation of its citizens for their alleged crimes. As Justice Harlan said:

It will be an evil day for American liberty if the theory of a government outside of the supreme law of the land finds lodgment in our constitutional jurisprudence. No higher duty rests upon this court than to exert its full authority to prevent all violation of the principles of the Constitution. — Downes v. Bidwell (1901) 182 U.S. 244, 382, dis. opn., quoted by Natsu Taylor Saito, Will Force Trump Legality after September 11? American Jurisprudence Confronts the Rule of Law (2002) 17 Geo. Immigr. L.J. 1, 60.

The American public should expect no less.

Postscript: Another reason the public should be concerned about this is the potential damage done to our ability to protect ourselves against biological warfare. If, as seems possible, the FBI lied merely to quickly lay a difficult public relations issue to rest — if they lied in order to make it appear that missing biological material which could be used against us was not, in fact, missing at all — then one of the world’s top biological research scientists has been unnecessarily taken out of circulation. A man who many think could have single-handedly developed protective vaccines against biological weaponry may have been sidelined for no other reason than to save the Administration from the embarrassment of admitting that biological material may have fallen into the hands of terrorists. On the tail of the now-nearly-forgotten attempts by the Administration to murder a CIA agent whose husband spoke out against the President, this is a scary situation, indeed.

Yep, that’s one of the main reasons given for keeping the Enron hearings closed to the public.

“There are matters that do not need to be discussed in public in ways that embarrasses [sic] or humiliates [sic] the government or the defense and particularly the court,” U.S. District Judge Kenneth Hoyt said. [Emphasis mine.]

Besides, when you’re hoping for an appointment to a higher office, it’s not to smart to piss of Karl Ro…I mean, Dick Che…I mean, “The President.” (Oh yeah, him. The little guy with Rove and Cheney’s hands in his back.)

You may remember Judge Hoyt. He’s the guy who ruled that laws against violent threats and assaults on abortionists, vandalism and blockading of clinics were unconstitutional. Yes, he’s the same judge who said that the guy who drove his car through the front doors of an abortion clinic and threatened abortionists should have his one-year sentence reviewed, apparently believing that freedom of speech requirements should have resulted in no sentence to this man who can neither think nor drive straight. Hoyt said—contrary to the rulings of six other judges on the same issue—that the 1994 Freedom of Access to Clinic Entrances Act was unconstitutional and dropped charges against antiabortion advocate Frank Bird, who in March drove his van through the front entrance of a Houston abortion clinic.

This is the same Judge Hoyt who, in United States ex rel. Riley v. St. Luke’s Episcopal Hosp., 982 F. Supp. 1261, dismissed the case against St. Luke’s for Medicare fraud without hearing evidence regarding the fraud because he said that False Claims Act which allowed qui tam plaintiff’s to sue was unconstitutional and because, even if it was, the plaintiff, a mere taxpayer, was not hurt by the government’s payment of fraudulent Medicare claims. Remember, it’s the government’s money; not ours. (An appeals court later reversed his judgement. The case was then heard on remand and Judge Hoyt [surprise!] dismissed it as being without merit.)

This is the same Judge Hoyt who thinks Africans are tall because they need to be so they can reach the bananas in the trees. Apparently, he’s never heard of pygmies. He also thinks Chinese people are short so they won’t be blown away by Siberian winds. Apparently he doesn’t realize that not all Chinese people lived near Siberia and—Yao, er, I mean, Yow!—not all Chinese people are short.

We’ll give him the benefit of the doubt regarding Siberia which is actually part of Russia. Since he said, “Siberian wind,” we have to admit that some Chinese probably lived a long time near present-day Qiqihar and Harbin and these people might have been exposed to Siberian winds.

No wonder, then, that Judge Hoyt was worried “particularly” about embarrassing the court!

Jeremy Bentham said

“. . . suppose the proceedings to be completely secret, and the court, on the occasion, to consist of no more than a single judge,—that judge will be at once indolent and arbitrary: how corrupt soever his inclination may be, it will find no check, at any rate no tolerably efficient check, to oppose it. Without publicity, all other checks are insufficient: in comparison of publicity, all other checks are of small account. Recordation, appeal, whatever other institutions might present themselves in the character of checks, would be found to operate rather as cloaks than checks; as cloaks in reality, as checks only in appearance.” – quoted by Judge Hugo Black, In re Oliver, 333 U.S. 257, 270.

Even Iran requires that

Trials are to be held openly and members of the public may attend without any restriction; unless the court determines that an open trial would be detrimental to public morality or discipline, or if in case of private disputes, both the parties request not to hold open hearing. – Article 165, The Constitution of the Islamic Republic of Iran.

The last time I checked, “potential embarrassment of courts” was not one of the reasons closed trials are sometimes allowed in the United States of America.

On the other hand, if the public were admitted to the Enron trial, we just might not be so happy with the current Regime anymore.

Hmmm…maybe Judge Hoyt knows how to get the bananas after all.

Spitting matches like the fight over the Ten Commandments come and go. But the federal courts are forever. Federal judges, often alone, stand between order and lawlessness; between the rule of law and mob rule. They are, as the Constitution’s drafters intended them to be, the minority’s bulwark against the tyranny of the majority. – CBSNews.com, “The Legal Battle Over ‘Roy’s Rock’“, August 29, 2003.

The story points out several things:

1. The law on the issue is quite settled; the case was a loser from the start.
2. Religious folk who talk about the government’s misguided attempts to kill off religion are themselves misguided. The law allows displays of religious monuments under certain conditions.
3. Judge Moore knew of those conditions and was given an opportunity to meet them. He refused.

As to that last point, the requirement was that the monument serve “a secular purpose.” As some have noted, the Supreme Court and some other courts have displays of the Ten Commandments. The question arises, “Why there? Why not here?”

The reason is that pesky Establishment Clause laid down by our Founding Fathers. As I noted before, they were a religious bunch. Yet they insisted on the idea that government has no place funding religious activities. Or, as they put it

Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof. – U.S. Constitution, from the Bill of Rights, First Amendment, First Clause, a.k.a., “The Establishment Clause.” [Emphasis mine.]

Judge Moore’s problem was that he refused to meet the criteria which would have allowed the Ten Commandments to remain in the rotunda because he was insistent that the one and only purpose of the monument was to be “to acknowledge G-d.” He was absolutely insistent upon using government funds and government property not so that he could teach about the historical foundations of the law, but so that he could acknowledge his G-d.

The Founding Fathers, courts of the United States throughout our history and even the extremely conservative Supreme Court of the United States of 2003 have all stated with one voice their stance regarding such government support for religion: Thou Shalt Not.

Amen!