[Guest post by DRJ]

The El Paso Times reports:

“Osvaldo Aldrete Davila was sentenced to 9 1/2 years Wednesday for smuggling more than 100 kilos of marijuana in 2005.”

Aldrete-Davila was sentenced by U.S. District Judge Kathleen Cardone, the same judge who sentenced Ignacio Ramos and Jose Compean.

– DRJ

[Posted by WLS]

This isn’t about a debate over whether there should or should not be valid state laws authorizing the distribution and use of medical marijuana.

The fact is that marijuana is a Schedule I controlled substance by act of Congress, making it illegal for any and all purposes.  It is a federal felony to DISTRIBUTE or POSSESS WITH THE INTENT TO DISTRIBUTE any Schedule I controlled substance.  It is a misdemeanor to possess it with the intent to use it.

The Supremacy Clause of the US Constitution means that state laws cannot override that federal statute so long as it is on the books.  Convince Congress to change the law — fine.  Until then, MJ distribution is illegal, whether medicinal or otherwise.

Now to the LAT story today on the DEA raid.  Here’s the paragraphs that are so pathetic:

Federal agents raided a Culver City medical marijuana dispensary where they spent more than four hours this afternoon, serving a search warrant that resulted in no arrests but left the shop in disarray.

Drug Enforcement Administration agents arrived about noon at Organica Collective in the 13400 block of Washington Boulevard, said Sarah Pullen, a spokeswoman for the Los Angeles office of the agency.

“Marijuana remains a controlled substance, and it is illegal under federal law to possess, dispense or cultivate marijuana in any form,” Pullen said of the purpose of the raid.

The federal operation came on the same day an appellate court in San Diego ruled that federal law does not preempt the state’s law allowing the use of medical marijuana — a ruling touted by supporters of California’s medical marijuana law as a significant win.

What Court?  What is the basis of the decision?

Read through the LAT article 2, 5, 10 times and you won’t find another mention of it.

The reference seems to cast doubt on the legitimacy of the law enforcement activity undertaken by DEA, which is described in the most “horrifying” details by LAT Staff Writer Tami Abdollah — I guess her salary is cheap enough that it wasn’t necessary to lay her off.  And the LAT is getting journalism worth every penny they are paying her.

So, what court decision came down today?

It seems that the California Fourth Circuit Court of Appeals in San Diego ruled against the City of San Diego, which had brought a civil suit to invalidate the state ID Card program which is being used as a foundation for California’s medical marijuana laws.  San Diego argued that because distributing marijuana is illegal under federal law, the state ID card program is also invalid.  The California state appeals court held otherwise, saying federal laws banning the distribution of marijuana don’t invalidate the ID law.

The bottom line on that is, for good or ill, state appellate courts have absolutely zero ability to determine what is or is not valid federal law.  So long as Congress deems that marijuana distribution, for medicinal purposes or otherwise, is illegal — its going to remain illegal and DEA is going to continue to raid these dispensaries.

Explanation for the pathetic reporting in this story?  I don’t know.  Maybe the LAT fired so too many editors.

The Justice Department yesterday asked the Supreme Court to rehear Kennedy v. Louisiana, the case that ruled unconstitutional the death penalty for child rape.

According to SCOTUSblog, the move is especially unusual because the Justice Department was not involved in the case the first time around. But after a blogger noted that the Supreme Court’s finding of a “national consensus” against the death penalty for child rape had ignored Congress’s specific and recent approval of that penalty in the Uniform Military Code of Justice, the omission made it to the front page of the New York Times. And now, the Justice Department has decided that it might be time to get involved.

The motion says:

Because the Court did not have a complete description of the relevant legal landscape, the Court’s decision rests on an erroneous and materially incomplete assessment of the “national consensus” concerning capital punishment for child rape. That error undermines the foundation for the Court’s decision.

Indeed. Not that it will make the slightest difference to Anthony Kennedy, the Court’s worst justice.

[Guest post by DRJ]

Last week, the Texas Attorney General announced indictments in the FLDS case on charges of sexual assault, bigamy and failure to report child abuse. One indictment was returned against Warren Jeffs and the remaining indictments were sealed until the suspects could be arrested.

Five suspects have turned themselves in to the Schleicher County Sheriff:

“* Raymond Merril Jessop, 36, the alleged husband of a 16-year-old daughter of Warren Jeffs, is charged with one count of sexual assault of a child.

* Allan Eugene Keate, 56, is charged with one count of sexual assault of a child.

* Michael Gorge Emack, 57, is charged with one count of sexual assault of a child.

* Merril Leroy Jessop, 33, is charged with one count of sexual assault of a child and bigamy.

* Lloyd Hammond Barlow, 38, is charged with three [misdemeanor] counts of failure to report child abuse.”

– DRJ

[Guest post by DRJ]

The Fifth Circuit affirmed the convictions of Ignacio Ramos and Jose Compean with one relatively minor exception. From the Fifth Circuit opinion:

“We conclude. For the most part, the trial of this case was about credibility, and although the jury could have gone either way, it chose not to believe the defendants’ version of the crucial events of February 17. The trial of the case was conducted fairly and without reversible error. The exclusion of evidence relating to the size of the marijuana load and Aldrete-Davila’s alleged involvement in drug-trafficking events of October 2005 did not violate the defendants’ Sixth Amendment rights to present a complete defense nor did it deny them a proper cross-examination of a witness against them. They were denied no right of due process for lack of notice that § 924(c) could be applied to police officers while performing law enforcement duties. Nor was the § 924(c) indictment defective. Moreover, the defendants were properly convicted of substantive crimes, not for violating Border Patrol policies. In instructing the jury, no reversible errors were committed and, finally, the evidence fully supports the jury verdict. We therefore affirm the convictions for counts 1 through 5 and counts 11 and 12.

However, we reverse and vacate the convictions for obstruction of justice under § 1512(c)—counts 6 through 10 of the indictment—because the Border Patrol investigation was not an “official proceeding” within the meaning of the statute. We therefore remand for resentencing not inconsistent with this opinion.”

Bottom line: The Fifth Circuit trusts the jury to make the right decision. In addition, as WLS predicted, the Court refused to overturn the 924(c) sentences of 11 and 12 years “[b]ecause Congress directed a mandatory minimum sentence of ten years for all defendants convicted under this statute, i.e., using a gun in relation to the commission of a crime of violence.” As a result, the Court said the district court had no discretion in imposing these sentences.

Conservative court and a conservative result. As the Court notes, that’s not much consolation to the defendants.

– DRJ

[Guest post by DRJ]

It wouldn’t be my first day back without some Texas news.

Last Tuesday a Schleicher County (Eldorado, Texas) grand jury issued 7 indictments alleging 9 counts of sexual assault, bigamy and failure to report child abuse in connection with the FLDS matter. The only named suspect was Warren Jeffs who was indicted for sexual assault of a child. The remaining indictments remain sealed until the suspects are located and arrested. News reports suggest it may be difficult to locate the suspects if they have gone into hiding but a Texas official stated they will do what is needed to bring the suspects in.

More indictments are expected.

– DRJ

Ed Whelan reports on Louisiana’s effort to get the Supreme Court to re-hear the case that found unconstitutional the death penalty for child rape. You may recall that, in dishonestly finding a national consensus (one so overwhelming that both presidential candidates rushed to denounce the decision), the Court’s chief gasbag Anthony Kennedy completely missed the federal government’s approval of exactly that penalty for exactly that crime in passing amendments to the Uniform Code of Military Justice.

Here’s a quote from the attorney who filed the petition for rehearing:

I am personally opposed to the death penalty, but I am also opposed to courts taking fundamental decisions away from American voters…. Since the Supreme Court’s decision came down, new evidence has emerged that the justices may have been too quick to identify a national consensus in this case, so when the State of Louisiana gave me the chance to help, I was happy to accept.

Good for him.

Posted by WLS:

Having read Judge Walker’s opinion last week in which he determined that the federal common law “state’s secrets” privilege was abrogated by Congress with its passage of FISA, it occurred to me that there is a fairly simple hypothetical which can be used to explore the view that FISA is an unconstitutional encroachment on the Article II “Commander in Chief” powers of the US.

Lets assume that the Clinton Administration hadn’t been so feckless in its closing months, and that after the bombing of the USS Cole it had followed the advice of Richard Clarke, sought an authorization to use force against Bin Laden, AQ, and the Taliban, and initiated offensive military operations — of whatever type — in Afghanistan for the purpose of dislodging Bin Laden and AQ.  

Lets next assume that part of the offensive operations was an aggressive intelligence collection effort conducted by NSA and DOD which focused on communications between Bin Laden and other AQ actors in Afghanistan on the one hand, and the loose net of affiliate organizations around the world on the other hand.

Lets next assume that the Bush Administration kept the same policy following the election, and remained on the offensive against Bin Laden and AQ, short of an all out invasion of Afghanistan.   That during this effort the intelligence agencies were able to intermittently intercept cell phone transmissions believed to be from Bin Laden and other members of AQ’s leadership.  

We’re still talking about a pre-9/11 timeframe here, and from those interceptions intelligence analysts were convinced there was some type of plot underway inside the US, but the details were not yet known.  But in July 2001, interceptions established a contact between AQ in Afghanistan and Ramzi Binalshibh in Germany.  Binalshibh is identified by intelligence agencies as having been associated with a cell of Islamic radicals in Hamburg, one of whom is Mohammed Atta, who is found to be attending flight school in the US in the summer of 2001, with travel records from various intelligence agencies showing they had traveled to Afghanistan together in 1999.

So, based on this information, in July 2001, NSA and DOD begin intercepting all telephone communications of Binalshibh in Hamburg.  These interceptions are the direct result of battlefield intelligence obtained in Afghanistan, and the purpose is to seek to collect actionable intelligence which might be used by the military or civilian law enforcement to prevent an attack on US soil.

Under these circumstances, is the President’s Article II authority as Commander in Chief to be constrained by FISA if Binalshibh decides to call Atta in the United States?  Its not Atta’s phone that is being monitored — its Binalshibh’s phone in Hamburg.  Does the Executive, in the midst of exercising its war fighting authority, have to run to the FISC to obtain a warrant to continue listening to communications between Binalshibh and Atta? 

[posted by Justin Levine]

In light of the extremely disingenuous rulings from Justice Anthony Kennedy recently, it might be good to once again remind readers to try and seek out Jeffrey Rosen’s article from the June 18th, 2007 edition of the New Republic entitled “Supreme Leader: The Arrogance of Justice Anthony Kennedy”.

To my mind, it remains THE key analysis of Justice Kennedy’s style, and one of the best articles ever written on a sitting Supreme Court Justice.

Regretfully, the entire article no longer seems accessible on the Internet. But trust me, it is well worth seeking out in traditional print form. The entire article is pure gold, but some snippets can be found here, here and here. Many writers and commentators have recognized its significance  (with some quoting other parts of the article).

One of Kennedy’s former law clerks takes exception to the tone of the article - probably because even he suspects that Rosen is on to something here. Dorf is right in one sense - the article IS a personal attack, and a well justified one at that. If Rosen’s tone takes on the character of a personal attack, it is only because the tone of Kennedy’s opinions are personally offensive - much more so than the opinions of the consistently liberal Justices on the court which manage to be merely wrong as a matter of legal theory.

Kennedy has proven that he does not have the temperament worthy of the power afforded to those sitting on the nation’s highest court. I say this even though the practical results of his decisions will more often comport with my own views when compared with some other Justices of the Court. But if I had the power to vote one (and only one) Justice off the island, Kennedy would easily be the first choice.

[posted by Justin Levine]

[posted by Justin Levine]

Kirk Makin of the Toronto Globe and Mail reports:

The media should not live in constant fear of facing a libel suit every time a provocative commentary is published or broadcast, the Supreme Court of Canada said yesterday in a major ruling won by controversial Vancouver radio broadcaster Rafe Mair.

In a 9-0 decision that modernizes the defence of fair comment, the court found that Mr. Mair did not defame Christian-values advocate Kari Simpson when he denounced her stand on a book-banning controversy.

Read the whole thing here.  You should also check out the court’s full opinion here.

I’ll admit that I don’t have much respect for the rather lazy and worn out argument that tries to compare school board officials to ‘Nazis’ or ‘Klan members’ simply because they reject certain books for a school curriculum or refuse to carry them on campus.    But that doesn’t mean that one should face the threat of a lawsuit merely for engaging in cliched hyperbole.

Howard Kurtz notes that Big Media is failing to hold Obama’s feet to the fire for his flip-flop on firearms.

Barack Obama is under hostile fire for changing his position on the D.C. gun ban.

Oh, I’m sorry. He didn’t change his position, apparently. He reworded a clumsy statement.

That clumsy statement, which his campaign is now running away from, was pretty categorical: “Obama believes the D.C. handgun law is constitutional.” Yet, Kurtz says, the newspapers aren’t calling him to task:

But even though the earlier Obama quote and the “inartful” comment have been bouncing around the Net for 24 hours, I’m not seeing any reference to them in the morning papers. Most do what the New York Times did: “Mr. Obama, who like Mr. McCain has been on record as supporting the individual-rights view, said the ruling would ‘provide much-needed guidance to local jurisdictions across the country.’ “

Add the L.A. Times to the list. In David Savage’s piece on the Heller decision, he allowed Obama to pretend he has always supported the decision, which found unconstitutional the very ban Obama’s campaign had declared constitutional:

On the presidential campaign trail, Republican John McCain and Democrat Barack Obama were supportive of the court’s ruling.

. . . .

For his part, Obama drew a somewhat different lesson from the court’s decision. He said it endorsed both gun rights and reasonable regulation.

“I have always believed that the Second Amendment protects the rights of individuals to bear arms, but I also identify with the need for crime-ravaged communities to save their children from the violence that plagues our streets through common-sense, effective safety measures,” he said.

“I know what works in Chicago may not work in Cheyenne. We can work together to enact common-sense laws, like closing the gun-show loophole and improving our background-check system, so that guns do not fall into the hands of terrorists or criminals.”

Wouldn’t it have been helpful to tell readers that Obama’s campaign said the D.C. law was constitutional?

Yes, that would have been helpful . . . to the truth.

But not to Obama.

And increasingly, that appears to be the editors’ calculus for deciding what appears in the paper.

UPDATE: In a story today about the Obama move to the center, the editors once again allow Obama to act as though he has always been in favor of the result in Heller:

Obama’s reaction to another Supreme Court ruling, which struck down a gun ban in Washington, D.C., stood in contrast to that of many local political leaders and was more tempered than that of many liberals. Whereas his hometown mayor, Richard M. Daley of Chicago, and Los Angeles Police Chief William Bratton sharply criticized the court decision, Obama was more welcoming. He said the ruling “reinforces that if we act responsibly, we can both protect the constitutional right to bear arms and keep our communities and our children safe.”

The best they do to undercut this notion is to say that “McCain’s campaign said Obama was unable to give a clear account of whether he viewed the Washington gun ban as constitutional” and claim that Obama has given “mixed signals” on the issue. How about saying that his campaign flatly declared the ban constitutional? There’s nothing “mixed” about that signal . . .

UPDATE x2: Is this a mixed signal, or a flip-flop?

Thanks to daytrader.

Posted by WLS:

The majority opinion in Kennedy v. Louisiana (appropriate irony) authored by Justice Kennedy is a stunning exclamation point on the Court’s move this term of impose itself as the unelected sovereign dominant over all things eminating from the political branches of the various governmental entities of the United States of America.   This capstone sentence near the end of the opinion is all you need to read and absorb to fully appreciate the complete absence of guiding constitutional principle underlying the liberals+Kennedy with respect to their view of their place vis-a-vis the  representative democratic branches of the governmental units:  

“Each of these propositions, standing alone, might not establish the unconstitutionality of the death penalty for the crime of child rape.  Taken in sum, however, they demonstrate the serious negative consequences of making child rape a capital offense.  These considerations lead us to conclude, in our independent judgment, that the death penalty is not a proportional punishment for the rape of a child.”

Got that?  The “propositions” mentioned are a variety of policy arguments, not one of which has any relationship to the language of the Eighth Amendment which prohibits “cruel and unusual” punishment.  No one “proposition” standing alone makes the death penalty for child rape “cruel and unusual” in a constitutional sense.  But all of them considered together do.  

Their “independent judgment.”   F*ck all those elected officials in whom the voters have vested the authority to exercise judgment on their collective behalf.  Frankly, I can’t believe no Justice in the majority suggested to Kennedy that he remove the “our independent judgment” language.   But, then again, maybe they wanted it exactly the way Kennedy wrote it — no time for subtlety.

A few of the more precious bon mots of enlightenment courtesy of Justice Kennedy:

“When the law punishes by death, it risks its own sudden descent into brutality, transgressing the constitutional committment to decency and restrait.”

“It is an established principle that decency, in its essence, presumes respect for the individual and thus moderation or restrait in the application of capital punishment.”

“In this context, which involves a crime that in many cases will overwhelm a decent person’s judgment, we have no confidence that the imposition of the death penalty would not be so arbitrary as to be ‘freakish’”.

“Evolving standards of decency are difficult to reconcile with a regime that seeks to expand the death penalty to an area where standards to confine its use are indefinite and obscure.”

“The incongruity between the crime of child rape and the harshness of the death penalty poses risks of overpunishment and counsels against a constitutional that the death penalty can be expanded to include this offense.”

“It is not at all evident that a child rape victim’s hurt is lessened when the law permits the death of the perpetrator.”

“Society’s desire to inflict the death penalty for child rape by enlisting the child victim to assist it over the course of years in asking for capital punishment forces a moral choice on the child, who is not of mature age to make that choice.  The way the death penalty here involves the child victim in its enforcement can compromise a decent legal system; and this is but a subset of fundamental difficulties capital punishment can cause in the in the administration and enforcement of laws proscribing child rape.”

But, lest he be too solicitous of the child victim’s welfare, Kennedy next rips children as testifying witnesses:

“The problem of unreliable, induced, and even imagined child testimony means there is a “special risk of wrongful execution” in some child rape cases.” (Citing the ever reliable National Association of Criminal Defense Lawyers brief.)

“In most cases justice is not served by terminating the life of a perpetrator rather than confining him and preserving the possibility that he and the system will find ways to allow him to understand the enormity of his offense.”  

What a beautiful sentiment.  We as taxpayers pay hundreds of millions of dollars every year to incarcerate pedophiles so that they, with the help of the “system,” might finally understand the error of their ways.

What kind of society is it that wants to cut off such meaninful and important efforts at self-enlightenment by something so barbarian as imposing the death penalty on a man who raped his 8 year old stepdaughter so savagely that a laceration to the left wall of the vagina had separated her cervix from the back of her vagina, causing her rectum to protrude into the vaginal structure. Her entire perineum was torn from the posterior fourchette to the anus.

Fortunately for all of us, he might now get the help he was so obviously crying out for courtesy of the Louisiana prison system.

 **Update:  Barack Obama has come out against the Court’s decision today: 

“I have said repeatedly that I think that the death penalty should be applied in very narrow circumstances for the most egregious of crimes,” Obama said at a news conference. “I think that the rape of a small child, 6 or 8 years old, is a heinous crime and if a state makes a decision that under narrow, limited, well-defined circumstances the death penalty is at least potentially applicable, that that does not violate our Constitution.”

I wonder if that means that Obama thinks Roberts and Alito are better models for future Supreme Court appointments than Ginsburg and Breyer?