Patterico's Pontifications

11/30/2010

Warporn Sweetness: The XM-25

Filed under: General — Aaron Worthing @ 6:02 pm

[Guest post by Aaron Worthing; if you have tips, please send them here.]

Via The Sun we learn about this bad boy.

Dubbed the “Game Changer”, the XM-25 fires a massive round which can be programmed by computer to explode after travelling any set distance.

This effectively turns the bullet into a grenade which penetrates hiding places and then blows up – meaning concealed enemy fighters are denied cover.

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Fisking Adam Liptak: The New York Times Distorts a Criminal Appeal to Suit Its Pro-Defendant Agenda (Updated Analysis)

Filed under: General — Aaron Worthing @ 4:38 pm

[Guest post by Aaron Worthing; if you have tips, please send them here.]

Or “In which the NYT Forces Me to Defend a Ninth Circuit Decision…”

Strap yourself in, this is going to be a long one.  Adam Liptak, in an editorial barely pretending to be a news item, argues that the Ninth Circuit is disrespecting veterans in its latest ruling.  You see, in U.S. v. Hinkson, the defendant was convicted of soliciting murder for hire involving several federal agents.  But the credibility of one of the witnesses is, shall we say, questionable.  And this is how Liptak presents it:

Elven J. Swisher wore a replica of a Purple Heart on the witness stand when he testified that the defendant had tried to hire him to kill three federal officials.

Asked about the medal, Mr. Swisher pulled a document from his pocket to show that he was entitled to it and many others for his service in combat in the Korean War.

Mr. Swisher said the defendant, David R. Hinkson, an armchair constitutionalist with eccentric views about the tax code, had asked him how many men he had killed. “Too many,” Mr. Swisher recalled saying.

All lies. Mr. Swisher had never seen combat, had killed no one and had served without distinction. The document was a forgery. Mr. Swisher has since been convicted of lying to federal officials, wearing fake medals and defrauding the Department of Veterans Affairs of benefits for combat injuries.

But the jury knew none of this, and with Mr. Swisher’s testimony it convicted Mr. Hinkson of soliciting three murders. He was sentenced to 33 years for those crimes, along with 10 years for tax evasion, and he is serving his sentence in the maximum-security prison in Florence, Colo.

OMG, can you believe that they convicted this man solely on the word of a man scummy enough to lie about his military service?  But you see, this is where the first slight-of-hand occurs.  Why?  Because Liptak leaves out the fact that in fact the defendant solicited two men to commit this crime.  From the court’s opinion:

In January 2003, Hinkson met bodyguard-turned-restaurant manager James Harding at a “health forum” in Southern California. Hinkson offered Harding a job at WaterOz and invited him to stay in Hinkson’s home. Harding later testified that, during his stay, Hinkson handed him a “large amount” of cash and offered him $20,000 total if he would kill Cook, Hines, and Lodge. Harding refused. In March 2003, Hinkson again asked Harding to kill Cook, Hines, and Lodge. Harding again refused. After this second request, Harding called the FBI and reported Hinkson’s solicitations.

(Cook is United States Attorney Nancy Cook.  Hines is IRS Special Agent Steven Hines.  And Lodge is a United States District Court Judge.)

In other words, two different men, reported to the FBI that Hinkson had solicited them to murder these three federal officials.  And if you are worried Harding was just copycatting Swisher’s possible lies, then I will point out that Harding reported to the FBI first, before Swisher.

Now Liptak doesn’t quite say that no one else was solicited for murder or that the testimony rested on this faux war hero.  But isn’t that the impression you get, reading those first paragraphs?  In fact, when you read the article, there isn’t a single word about Harding or any corroborating evidence.  Didn’t Liptak owe it to his readers to share that fact?

Another fact Liptak fails to mention is that even the dissenters believed that Hinkson actually asked Swisher to carry out those murders, Judge Fletcher writing:

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Happenings in Reinhardtland

Filed under: General — Aaron Worthing @ 10:32 am

[Guest post by Aaron Worthing; if you have tips, please send them here.]

Yesterday, I told you about how Judge Reinhardt headlined the panel of three justices who will be hearing the Proposition 8 appeal.  Well, today we learn from Ed Whelan that Reinhardt probably has to disqualify himself.  I suggest you read both posts in full (here and here) but here is the bottom line:

Canon 3.C of the Code of Conduct for United States Judges provides a non-exhaustive list of circumstances in which a judge must disqualify himself on the ground that his “impartiality might reasonably be questioned.” Subpart (1)(d) states that those circumstances “includ[e] but [are] not limited to instances in which … the judge’s spouse … is (i) a party to the proceeding, or an officer, director, or trustee of a party; or (ii) acting as a lawyer in the proceeding.”

In this case, Ripston was an officer of an entity that acted as a lawyer in the proceeding—a trivial variation on the examples given. Judge Reinhardt is therefore clearly required to disqualify himself from the Prop 8 appeal.

So, Reinhardt must step aside.  But then again, Judge Walker should have stepped aside, too, and he didn’t.  So who knows if Reinhardt will obey that rule.

But at the same time Orin Kerr echoes my point that a “Reinhardt” win might be a pyrrhic victory:

At the same time, I would think [Reinhardt’s involvement] is bad news for opponents of Prop 8 in the long term. It goes without saying that Reinhardt will vote the liberal way, and he’ll likely have Hawkins with him. But the word “Reinhardt” is radioactive at 1 First Street. Reinhardt writes like there is no Supreme Court, and as a result his opinions have a remarkable ability to annoy the Justices. In return, the Supreme Court loves to reverse Reinhardt. They love to reverse opinions he signs, and they love to reverse opinions he participates in. So the fact that he’ll likely be involved in the panel decision probably hurts opponents of Prop 8 in the long run.

But the law is the law.  I may suspect we will trade Reinhardt for another liberal who will equally disregard the law and strike down this constitutional amendment, only this liberal’s reputation won’t be as radioactive.  But the judges have to at least fake being impartial, and that means Reinhardt must step aside.

Update: Orin Kerr weighs in on the disqualification issue, writing:

I’ll leave it to the legal ethics experts to weigh in on this question, as I don’t know what to make of it. My gut reaction is that no reasonable person familar with Reinhardt’s way of deciding cases could believe that his wife’s involvement would make any possible difference in how he approached the case. But I don’t know if the recusal standard is supposed to use a more idealized standard.

I am sorry, but this misses the point.  I mean the argument seems to be “he is so biased by his liberal activism that he couldn’t possibly be biased by his wife’s involvement”—or at least that is how I understand his somewhat cryptic remarks.  But in that case, you are easily meeting the Code of Judicial Conduct statement that one should step aside when one’s “impartiality might reasonably be questioned.”  It may be the sad state of our law that we know how Reinhardt is going to rule before he reads a single word of the case, but that cannot be cited as an excuse for disregarding any other violations of the rules of judicial conduct.

I mean suppose it was learned tomorrow that anti-Proposition 8 forces actually bribed Reinhardt to rule in their favor.  I mean, I want to be clear that they have never shown any tendency to do anything so dishonorable, but suppose they did?  Then by Kerr’s logic, since the bribe isn’t likely to change Reinhardt’s decision, there is no reason to step aside.  But if there ever was a case where a judge had to step aside, it is when they are bribed.

I mean he is right to say it is a bit of a mockery to talk about these technicalities, while the elephant in the ethical room is the fact we know Reinhardt will rule in favor of gay marriage not because any plausible interpretation of the Equal Protection Clause would support that outcome, but because that is how Reinhardt wants things to happen.  Yes, that is the more egregious bias that should lead him to step aside on his own accord (and probably just generally resign from being a judge barring significant reform).  But that isn’t going t happen anytime soon, and the question is whether he should throw out the rulebook altogether.

And there is an important difference between Reinhardt’s activist bias, and the bias arising from issues such as his wife’s involvement in the case.  The difference is the evidence.  The fact is that Reinhardt doesn’t write opinions that say, “I know the Supreme Court has said X, and the Constitution also says X, but I don’t like that outcome so I will rule that Y is the rule.”  He pretends to be following the law and the constitution even as wiser minds know that it is a thin farce unlikely to fool anyone, but himself.   But he fakes it just enough that you can’t be sure he is not consciously disregarding it.  By comparison facts such as his wife’s involvement in the case are not in dispute.

(I will also note that bias is traditionally considered a two-way street.  That is, if a judge has connections likely to bias him or her toward one side, both sides have equal standing to seek disqualification.  This is because the bias could easily cut both ways.  Let me give you a concrete example.  Imagine in a case involving a murder, that the judge was related to the victim.  Well, then the defendant and the prosecutor would have cause to challenge the judge’s impartiality.  The defendant obviously would be afraid that the judge would be unfair to him out of a belief that he killed the judge’s relative.  But the prosecutor would also have cause for concern that the judge, being aware of this obvious concern for bias against the defendant, might go the other way and bend over backwards to be kind to the defendant, to show how “unbiased” he was—and thus treat the prosecution unfairly.  I think this point has limited application to this situation, but I thought I would share this theory regardless.)

[Posted and authored by Aaron Worthing.]

Keith Olbermann Shows Us Who Is the Worst Person in the World (Update: I Have Been Out-Snarked)

Filed under: General — Aaron Worthing @ 7:34 am

[Guest post by Aaron Worthing; if you have tips, please send them here.]

Update: Via Narciso in the comments, I learn that Say Anything has a much, much better snark on this:  Julian Assange Exposed Thousands of Sensitive US Documents, So the Worst Person in the World is Obviously Bristol Palin.

What can I say?  I have been outclassed.  Now to rejoin the post already in progress and riffing off of the title:

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By which I mean, in a snarky way, him.  Which of course is only a joke.  If we were actually going to talk about who was the worst person in the world the top of the list would be, say, Osama bin Laden, or Kim Jung Il.  I mean there is a whole world full of dictators and terrorists and various assorted scum who could earn the title more easily than any one of the people Olbermann regularly names as worst.

But having suspended this segment for I think something like five minutes because he was so inspired by Jon Stewart’s Rally to Restore Sanity (starring an Islamofascist, presented as one of the sane), Olbermann was back at it, naming the Worst Person in the World, telling us who was so insufferably awful this week: Bristol Palin.  Why?  Because she made an ad saying that you should save yourself for marriage, but if you don’t, use protection.

Now the ad he is complaining about is all kinds of pointless (and, Mikey, no one is fooled by your bragging about magnums, okay?), but there is a world of difference between something being pointless and being the act of a bad person.  So what exactly is Keith’s objection?  Does he think that not having sex does not prevent pregnancy?  Does he want children to have lots of unprotected sex?  Or does he feel that Bristol has a duty to advocate for teenage promiscuity, given that she verifiably had sex at least once as a teenager?  Does he think that she should not say, “hey, I have learned through experience that being an unwed mother sucks, so try your best not to be one yourself”?  Seriously, is he an advocate of the view that Bristol should not actually, you know, learn from her mistakes and tell other people not to make them?

I could see him in the 18th century calling John Newton a bad guy for denouncing slavery after he had engaged in it.  “And can you believe that piece of crap song Amazing Grace?  He tells us all that he was a wretch, but now we should listen to him?”

In the end I think Olbermann was just infected with a form of prejudice.  He saw a person he associates with conservatism and heard her say “abstain” and thought this meant she was pushing an abstinence only agenda.  But the total message of the ad was, please wait until marriage, but if you don’t, use protection.  How is that even outside of the mainstream of thought on the subject?

Keith Olbermann is not the worst person in the world for his seething hatred of everything Palin (and watch the video for a bonus dose of Bush derangement).  That terrorist in Portland the other day is a better nominee.  But he is being a jerk, which is hardly surprising.

And I would add that in addition to resuming a segment he swore off because of Jon Stewart’s rally, he also ignored Jon Stewart’s advice: kids are off limits.

Update: My retched, I mean wretched, spelling has been corrected.  Thanks to Mike Myers for catching it, although I am wondering if he is the creator of Wayne’s World, or the killer in Halloween?

[Posted and authored by Aaron Worthing.]


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