Category Archives: Legal

Someone needs a lesson in separation of powers… AGAIN

Constitution, Crime and Punishment, Dumbasses and Authoritarians, Foreign Affairs, Immigration, Legal, Politics, Separation Of Powers, The War on Drugs

Well now, take a quick look at this bill, and see if you can tell me what’s wrong with it:

HR 563 IH

110th CONGRESS

1st Session
+

H. R. 563

To vacate further proceedings in the prosecution of certain named persons.

IN THE HOUSE OF REPRESENTATIVES

January 18, 2007

Mr. HUNTER (for himself, Mr. POE, Mr. JONES of North Carolina, Mr. TANCREDO, Mr. ROHRABACHER, Mr. GOODE, Mr. BURTON of Indiana, Mrs. MUSGRAVE, Mr. ROYCE, Mr. DUNCAN, Mr. BARTLETT of Maryland, Mr. HERGER, Mr. COLE of Oklahoma, Mr. BARRETT of South Carolina, Mr. CARTER, Mr. PORTER, Mr. MCCOTTER, Mr. BURGESS, Mr. GERLACH, Mr. MICA, Mr. SAXTON, Mr. DAVIS of Kentucky, Mr. SESSIONS, Mr. CANTOR, Mr. HOBSON, Mr. LAHOOD, Mr. WALSH of New York, Mr. TERRY, Ms. FOXX, Mr. HASTINGS of Washington, Mr. WELDON of Florida, Mr. BISHOP of Utah, Mr. KIRK, Mr. ROGERS of Alabama, Mrs. MYRICK, Mr. STEARNS, Mr. RENZI, Mr. BONNER, Mr. BAKER, Mr. PETERSON of Pennsylvania, Mr. EVERETT, Mr. CANNON, Mrs. CUBIN, Mr. SHADEGG, Mr. SHIMKUS, Mr. COBLE, Mr. ENGLISH of Pennsylvania, Mr. GILCHREST, Mr. HAYES, Mr. LEWIS of Kentucky, Mr. ROGERS of Kentucky, Mr. DAVID DAVIS of Tennessee, Mr. PEARCE, Mr. GINGREY, Mr. GARY G. MILLER of California, Mr. LOBIONDO, Mr. TIBERI, Mr. WHITFIELD, Mr. LATOURETTE, Mr. YOUNG of Florida, Mrs. BLACKBURN, Mr. PITTS, Mr. SMITH of New Jersey, Mr. SULLIVAN, Mr. MANZULLO, Mr. MCHUGH, Mr. WILSON of South Carolina, Mr. MCKEON, Mr. AKIN, Mr. KINGSTON, and Mr. TIAHRT) introduced the following bill; which was referred to the Committee on the Judiciary, and in addition to the Committee on Homeland Security, for a period to be subsequently determined by the Speaker, in each case for consideration of such provisions as fall within the jurisdiction of the committee concerned

A BILL

To vacate further proceedings in the prosecution of certain named persons.

Whereas the conviction and sentencing of United States Border Patrol Agents Ignacio Ramos and Jose Compean for the pursuit and shooting of drug smuggler Osvaldo Aldrete-Davila which is the subject of a Federal criminal case in the United States District Court for the Western District of Texas represents an extreme injustice: Now, therefore,

Be it enacted by the Senate and House of Representatives of the United States of America in Congress assembled,

SECTION 1. SHORT TITLE.

This Act may be cited as the `Congressional Pardon for Border Patrol Agents Ramos and Compean Act’.

SEC. 2. ORDER.

It is hereby ordered that the conviction and sentences of Border Patrol Agents Ignacio Ramos and Jose Compean are vacated. The release of the defendants from the custody of the Government is hereby ordered, with prejudice. No further criminal prosecution or other proceeding against these named individuals with respect to the circumstances giving rise to the convictions and sentences vacated by this Act shall take place.

SEC. 3. SENSE OF CONGRESS.

It is the sense of Congress that the Department of Homeland Security review the rules of engagement presently utilized by the United States Border Patrol.

END

If you guessed it had something to do with the title of this post, you get a gold star.

So, a little background for those of you who don’t know.

Ramos and Compean were Border Patrol Agents on the U.S. Mexican border, along the El Paso section; which happens to be one of the busiest smuggling regions, as well as one of the more dangerous.

Border patrol rules of engagement specify that BP agents are not to enter into armed confrontation with smugglers. Well, Ramos and Compean did; and they ended up shooting one in the back.

Oooh no, in the back, those foul evildoers…

Yeah it’s bull. Anyone who knows anything about a violent situation knows that when shooting starts, you don’t pay attention to anything other then staying alive, and stopping the threat. If he’s still moving, he’s still fighting; but that’s neither here nor there.

The problem is, after shooting at said scumbag (who was attempting to smuggle 800lbs of Marijuana that day) 15 times (they apparently only hit him once), they figured “ehh just another dead smuggler”, and they didn’t report the incident.

Now, that is a seriously big no-no. Very bad ju-ju. They violated their ROE, and they knew it, so they decided to hush it up. Grounds for dismissal certainly, and possibly a minor prosecution; but probably nothing really serious.

But the scumbag wasn’t dead; and he complained to his own government about being shot. The Mexican government then complained to our Department of Homeland Security (who run the Border Patrol), who at the behest of the Mexican government told the U.S. Attorney for the western district of Texas that these two agents had “Committed a conspiracy to commit murder against a Mexican citizen”.

Anyway, the El Paso U.S. Attorney looks at the ROE, looks at the criminal drug smuggling bastard shot in the back, and then looks at the pressure from Homeland Security and the Mexican government; and of course he sees where his bread is buttered, and decides to crucify Ramos and Compean.

They were charged with and convicted for, assault with a deadly weapon, attempted murder, and conspoiracy to commit murder; and they each got 12 years… actually 11 years and 1 day, and 12 years respectively (not sure what the calculation was on that).

It gets better. Once they were remanded to custody, TWO BP AGENTS WHO SHOT A MEXICAN DRUG SMUGGLER WERE PUT INTO GEN-POP WITH ALL THE MEXICAN GANGS.

They were of course beaten nearly to death within hours, before being put into protective custody.

Now, SOP for a cop who gets sent to prison, is that they are NEVER put in with the general population, because if they do, it’s effectively a death sentence. How this was ignored… let’s just say is smells.

Let me just say something: I know for a fact we didn’t get the whole story out to the public. I have family in the Border patrol who tell me this whole thing stinks to high heaven. BUT, based on what evidence was presented, this wasn’t attempted murder or assault, this was a JUSTIFIED line of duty shooting.

What it comes down to is, the BP agents in question were so scared of the bureaucratic bull, and attitude of the Border Patrol management, that they decided to pretend it never happened. Their fear of their own bad management is what created this problem, not any improper action in shooting said drug smuggling scum bag.

Anyway, off my soap box for a minute.

Now, look at this little section from the bill above:

SEC. 2. ORDER.

It is hereby ordered that the conviction and sentences of Border Patrol Agents Ignacio Ramos and Jose Compean are vacated. The release of the defendants from the custody of the Government is hereby ordered, with prejudice. No further criminal prosecution or other proceeding against these named individuals with respect to the circumstances giving rise to the convictions and sentences vacated by this Act shall take place.

Now, here’s the big problem.

Congress can’t do that.

The constitution provides clearly delineated separation of the powers of the branches of government. Congress Makes the Laws, the Courts interpret and apply the laws, and the Executive branch executes and enforces the laws.

Pretty cut and dried.

Congress could write a new law, saying that what Ramos and Compean did isn’t illegal; but it wouldn’t change their case because what they did WAS illegal when they did it, according to the interpretation of the courts.

The courts could overturn their conviction, and dismiss the charges.

The Executive branch is the enforcement branch, and as such the privilege of executive clemency is their purview; so the president could pardon them.

But Congress cannot, “By act of Congress Assembled”, vacate a conviction, or grant a pardon. Oh they can do it symbolically with a “sense of congress” resolution, or they can ASK the president to issue a pardon, they can even by act of congress ask the supreme court to consider the case (as they did with the Terry Schaivo issue… though the way it was worded they overstepped their bounds there as well)…

But congress can not vacate a conviction, or issue a pardon. In fact, they can’t order the courts, or the president to do ANYTHING; except to follow the law. It is not within their constitutionally delegated powers to do so.

The only enforcement power that congress has, is to cite someone for contempt of congress (either for not following a law, or for not responding to the requests of congress expressed in their powers of subpoena to compel evidence and testimony); or to institute impeachment against the president (and in fact, they don’t enforce that: the supreme court, acting on the authority of the senate, vacates the office of the president, and then the next in line of succession takes over).

Of the bills 87 co-sponsors, most of them are lawyers, who one would assume took constitutional law at some point or another. Many of them are congressmen of long service, who really should understand their constitutional authority, role, and powers.

Perhaps we are asking too much of our congressmen to understand their jobs, or the constitution.

Chris Byrne
I am a cynically romantic optimistic pessimist. I am neither liberal, nor conservative. I am a (somewhat disgruntled) muscular minarchist… something like a constructive anarchist.

Basically what that means, is that I believe, all things being equal, responsible adults should be able to do whatever the hell they want to do, so long as nobody’s getting hurt, who isn’t paying extra

http://anarchangel.blogspot.com

Supreme Court Strikes Down Punitive Damage Award Against Philip Morris

Constitution, Legal

This morning, the Supreme Court overturned a jury verdict of nearly $ 80 million against Philip Morris:

The Supreme Court today threw out a nearly $80 million jury award against the Philip Morris tobacco company, a victory for it and other big businesses seeking limits on what juries may award to punish companies.

The court ruled 5-4 that the jury had not been properly instructed to consider how to award punitive damages in an Oregon case in which a smoker’s widow had sued Philip Morris USA, now part of the Altria Group.

The jury awarded Mayola Williams $821,000 in compensation, then tacked on the punitive award in part to penalize the company for what was termed a “massive market-directed fraud” that convinced people smoking was not dangerous and did harm to many others.

But the court ruled that the constitution’s due process clause forbids a state to use punitive damages to punish a company for injury that it inflicts upon others who are “essentially, strangers to the litigation,” according to the majority opinion written by Justice Stephen G. Breyer.

Breyer said jurors may take into account that harm caused to others shows reprehensible conduct, but “a jury may go no further than this and use a punitive damages verdict to punish a defendant directly on account of harms it is alleged to have visited on nonparties.”

This decision is only the latest in a trend that has seen the Supreme Court place limits on the ability of Judges and juries to award astronomical punitive damages that are out of proportion to the damage actually sustained by the Plaintiff:

While compensatory damages make up for a plaintiff’s direct loss, punitive damages are imposed as a penalty, and are typically left by state law in the hands of juries.

The court has steadily curtailed punitive rulings, however, finding that they must be proportionate to the wrong committed, and even suggesting a financial limit — that punitive rulings be no more than nine times more than any compensatory damages.

In this case, the punitive damages awarded by the jury were nearly 100 times greater than the actual damages suffered by the Plaintiff. Though the Court did not address the issue of the size of the award in this opinion (though I wouldn’t be surprised to see this same case back before the Court on that issue in a few years), this clearly constitutes a violation of due process.

Doug Mataconis
http://www.belowthebeltway.com

The Death Of Personal Responsibility

Legal

A 58 year old man in New York was fired by IBM recently because he was visiting adult chat rooms on company time using company computers. In response, he’s suing IBM claiming protection under the Americans With Disabilities Act:

WHITE PLAINS, N.Y. — A man who was fired by IBM for visiting an adult chat room at work is suing the company for $5 million, claiming he is an Internet addict who deserves treatment and sympathy rather than dismissal.

James Pacenza, 58, of Montgomery, says he visits chat rooms to treat traumatic stress incurred in 1969 when he saw his best friend killed during an Army patrol in Vietnam.

In papers filed in federal court in White Plains, Pacenza said the stress caused him to become “a sex addict, and with the development of the Internet, an Internet addict.” He claimed protection under the American with Disabilities Act.

(…)

Until he was fired, Pacenza was making $65,000 a year operating a machine at a plant in East Fishkill that makes computer chips.

Several times during the day, machine operators are idle for five to 10 minutes as the tool measures the thickness of silicon wafers.

It was during such down time on May 28, 2003, that Pacenza logged onto a chat room from a computer at his work station.

Diederich says Pacenza had returned that day from visiting the Vietnam Veterans Memorial in Washington and logged onto a site called ChatAvenue and then to an adult chat room.

Pacenza, who has a wife and two children, said using the Internet at work was encouraged by IBM and served as “a form of self-medication” for post-traumatic stress disorder. He said he tried to stay away from chat rooms at work, but that day, “I felt I needed the interactive engagement of chat talk to divert my attention from my thoughts of Vietnam and death.”

In other words, it wasn’t his fault that he was breaking company rules, it was the damn Vietcong…..or maybe LBJ, William Westmoreland, and Richard Nixon.

This case is only one example of something that has become all too prevalent in American society. Instead of taking responsibility for their actions and admitting that they did something wrong, people blame their problems on someone or something else. In Mr. Pacenza’s case, instead of admitting that it was wrong for him to goof off on company time in an adult chat room, he thinks that IBM was wrong for failing to “reasonably accomodate” his Internet “addiction.” That being said, while porn addiction withdrawal may be tough, he perhaps should consider getting some treatment for this addiction so he can take back control of his life and prioritize his work and family once again.

Most likely, this lawsuit will be thrown out long before it reaches a jury. But the underlying problem of the death of personal responsibility will remain and there will be plenty more James Pacenzas in the future.

Doug Mataconis
http://www.belowthebeltway.com

Recent Firings Of US Attorneys Were Political

Legal, Politics, Separation Of Powers

And oddly enough, it appears to largely be Republicans firing Republicans for investigating fellow Republicans…

6 of 7 Dismissed U.S. Attorneys Had Positive Job Evaluations (emphasis added)

All but one of the U.S. attorneys recently fired by the Justice Department had positive job reviews before they were dismissed, but many ran into political trouble with Washington over issues ranging from immigration to the death penalty, according to prosecutors, congressional aides and others familiar with the cases.

Two months after the firings first began to make waves on Capitol Hill, it has also become clear that most of the prosecutors were overseeing significant public-corruption investigations at the time they were asked to leave. Four of the probes target Republican politicians or their supporters, prosecutors and other officials said.

Now, leave off the question of whether the firings had political motivation. At the very least, one must ask, when considering these sorts of actions, “what will the motivation for these actions look like?” In this case, it looks like these are prosecutors who were getting positive performance reviews, but they started looking under the wrong skirts, and got slapped down for it.

Normally, I might not get too upset over this. After all, when you’re in the world of politics, you have to expect that your friends will stab you in the back if it means another point in the polls for them. That’s how politicians operate, and that’s been the rule of the game ever since we transitioned from the divine right of kings to choosing rulers at the ballot box. But given our current administration’s desire to assume their own sort of divine rights, I see that this is merely a continuation of the same pattern we’ve seen the last six years. The money quote:

“There always have traditionally been tensions between main Justice and U.S. attorneys in the districts,” said Carl W. Tobias, a law professor at the University of Richmond. “But it does seem like there’s an effort to centralize authority in Washington more than there has been in the past and in prior administrations.”

If you wonder what the effects of centralized power will end up being, look no further than to a quote from Ronald Reagan: “Concentrated power has always been the enemy of liberty.” This only puts in sharper relief the extent to which the conservative movement has abandoned the cause of liberty in the last two decades.

Brad Warbiany
https://thelibertypapers.org/

Another SWAT Team Outrage

Crime and Punishment, Police Watch, The War on Drugs

On Tuesday, the Wharton Police Department in Texas shot a 17-year old boy, Daniel Castillo Jr. to death. The SWAT team was serving a search warrant looking for drugs after the police allegedly witnessed a drug deal take place at the residence. According to the family, Castillo was unarmed and asleep when the SWAT team burst into his bedroom door and killed him. Radley Balko has the details

According to [Rick] Dovalina [head of the local LULAC chapter], police say they found what appear to be stems and seeds of marijuana, either in the Castillo home or in the yard behind it. Contrary to earlier reports, the victim’s father, Daniel Castillo, Sr. was not arrested or charged with a crime.

Police did arrest a man in a white pick-up truck outside the house. The man was apparently dating one of the victim’s sisters, and police claim they found crack cocaine in the vehicle.

Dovalina says Daniel Castillo, Jr. was unarmed, had no criminal record, and according to his father, was not involved in the drug trade. The police affidavit for the search warrant claims an unidentified informant saw crack being sold from the house. It names “David Castillo” as a possible suspect, then later, “Daniel Castillo.” That tip and police observations of “traffic” at the Castillo home formed the basis of the forced-entry SWAT raid. No one but the police knows the identity of the informant.

According to his sister, Castillo was shot just below the eye as he rose up from his bed after hearing her scream. She was holding a 1-year-old child just a few feet from the shooting.

So here we have a SWAT team, in search of Demon Crack, that shoots a kid in the face after they wake him up. The kid was unarmed, there was no reason to shoot him. Sadly, these incidents are becoming all too common as a result of the War on (some) Drugs and use of no-knock raids and SWAT teams. Sadly also, there won’t be as much outrage to this incident as there was over the Kathryn Johnson and Sean Bell shootings because people have become desensitized over these killings.

Kevin Boyd
I’m one of the original co-founders of The Liberty Papers all the way back in 2005. Since then, I wound up doing this blogging thing professionally. Now I’m running the site now. You can find my other work at The Hayride.com and Rare. You can also find me over at the R Street Institute.
https://thelibertypapers.org/2005/11/22/a-bit-about-kevin/
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