. . . even though he is not eligible to practice law in the state of California.

In an article that gives new meaning to the term “burying the lede,” the Argonaut — a small paper published in Marina del Rey, California — tucks the following tidbit into the 38th paragraph of a 39-paragraph article about convicted felon Stephen Yagman:

Currently free pending his appeal and preparing to try a federal case on December 14th, Yagman was philosophical about his immediate future, with a jail term looming over the horizon.

“[The conviction] puts a crimp in what I’ll be doing for a while, but that’s life,” he concluded.

Apparently it’s not putting enough of a crimp.

I honestly had to rub my eyes after reading that passage.

Stephen Yagman is preparing to try a federal case on December 14th?! Are you kidding me? Are you [several expletives deleted] KIDDING me?!

Is that federal case taking place in California? Because I just looked up his page on the State Bar web site, and here’s what it says today:

And the reason he’s not eligible is really no mystery:

I suppose it’s remotely possible that the federal case is taking place in a state other than California. If so, it must be a state which doesn’t care when one of its members is convicted of more than a dozen federal felonies, and has been suspended from practice by the State Bar in his home state.

Either that — or maybe the phrase “Not Eligible to Practice Law” has some arcane meaning with which I am unfamiliar.

I have another question: how is Yagman able to conduct a federal trial when he is supposedly oh, so very sick? Isn’t this the guy whose attorney argued that he couldn’t be sent to federal prison in part because of his allegedly poor health? Why, yes . . . it is.

One other thing: UC Irvine must be very proud, because their new dean is about to help Yagman in his appeal:

In an exclusive interview with The Argonaut, Yagman vowed to appeal his conviction. Erwin Chemerinsky, the newly appointed dean of the University of California, Irvine and a well-known professor of constitutional law, will join Yagman’s trial attorney, Barry Tarlow, in appealing the sentence.

Thank God they reinstated Chemerinsky’s offer! What would Southern California do without him?

I’m going to nose around and see if I can’t get to the bottom of this Yagman December 14 trial thing. This seems like a genuine story to me.

Do you think it’s really true? Or did the Argonaut just get it wrong?

The following is my most decidedly non-legal, gut reaction to the proceedings happening at GTMO. There may be legal justifications for them; I can’t authoritatively speak to that.

But I do know that, based on what I’ve read, they just don’t seem fair.

Some of the main problems: Detainees lack access to the prosecution’s evidence. They lack the right to present their own evidence. There is a rebuttable presumption in favor of the Government’s evidence. Detainees lack the right to counsel, and what access they do have to counsel is severely restricted.

Understand where I’m coming from. I’m a professional in the criminal justice system. If we ever held proceedings that denied the procedural protections that are lacking in the CSRT hearings, everyone would agree that those proceedings would be deemed completely unfair.

Now, look. I understand that the folks at GTMO are not in the same posture as an American citizen charged with a crime. And granted full habeas rights to prisoners of war would present huge potential difficulties, as Justice Scalia repeatedly pointed out during the argument.

But the people at Gitmo are not all people who were picked up on the battlefield, fighting against the U.S.

For example, the petitioners in the Boumediene case allege — and the Government does not dispute — that they never waged war on the United States. According to their brief, they were arrested in Bosnia under pressure from the U.S. Government, which contended that they had conspired to attack the U.S. Embassy in Sarajevo. After an international investigation (conducted with the aid of the U.S. Embassy) failed to substantiate the charges, a tribunal established under the Dayton Peace Agreement ordered them released. They were on the verge of being released when they were snatched by Bosnian police (again acting under pressure from the U.S.) and transferred to U.S. military personnel, who took them to Guantanamo in January 2002.

They’ve been held there ever since — for almost six years.

I don’t know what evidence the U.S. has against them. But neither do they:

Most of the evidence the government presented to the CSRT panel was classified and, therefore, concealed from Petitioners under CSRT regulations. Pet. App. 39a, 82a. The following colloquy from the CSRT hearing of Petitioner Ait Idir (charged with “associat[ing] with” an unnamed but “known al Qaeda operative” (CAJA 493)) is illustrative (Pet. App. 83a-84a):

Detainee: Give me his name.

Tribunal President: I do not know.

Detainee: How can I respond to this?

Tribunal President: Did you know of anybody that was a member of Al Qaida?

Detainee: No, no.

Tribunal President: I’m sorry, what was your response?

Detainee: No.

Tribunal President: No?

Detainee: No. This is something the interrogators told me a long while ago. I asked the interrogators to tell me who this person was. Then I could tell you if I might have known this person, but not if this person is a terrorist. Maybe I knew this person as a friend. Maybe it was a person that worked with me. Maybe it was a person that was on my team. But I do not know if this person is Bosnian, Indian or whatever. If you tell me the name, then I can respond and defend myself against this accusation.

Tribunal President: We are asking you the questions and we need you to respond to what is on the unclassified summary.

Detainee: Why? Because these are accusations that I can’t even answer. I am not able to answer them. You tell me I am from Al Qaida, but I am not an Al Qaida. I don’t have any proof to give you except to ask you to catch Bin Laden and ask him if I am a part of Al Qaida. To tell me that I thought, I’ll just tell you that I did not. I don’t have proof regarding this. What should be done is you should give me evidence regarding these accusations because I am not able to give you any evidence. I can just tell you no, and that is it.

Is it any wonder that Seth Waxman described these tribunals yesterday as “Kafkaesque”? It puts one in mind of Josef K’s statement in “The Trial”:

This question of yours, Sir, about my being a house painter — or rather, not a question, you simply made a statement — is typical of the whole character of this trial that is being foisted on me. . . . I do not say that your procedure is contemptible, but I should like to present that epithet to you for your private consumption.

This parallel occurred to me on my own — which is not saying much; it’s pretty obvious — but after writing it I did a quick Google search, and was not surprised to learn that I was not the first person to make the connection between the above CSRT passage and “The Trial.”

What should be done with these people? Should they be given all the rights U.S. citizens charged with crimes in the U.S. have? I’m not sure about that.

But I do know that the procedures in place now just don’t seem fair. If you can’t find out what evidence the Government has against you; if you can’t present your own evidence; if you are arguing to a tribunal that is told to presume that the Government’s position is correct . . . that’s not fair. It runs a real risk of causing us to hold people who are innocent.

There has to be a better way.

Last night, I noted that I was awaiting Jan Crawford Greenburg’s analysis of yesterday’s Gitmo argument. She has now posted it, here. If Jan is right, I was wrong to be utterly confident of a liberal victory:

[L]ast spring, after the Court first decided it was premature to take up the detainees’ case, Kennedy later took the highly unusual step of switching his vote to jump into it (as did Stevens). So most people, including me, thought he was a sure bet to again abandon fellow conservatives in this highly significant case.

But after hearing yesterday’s arguments—and Kennedy’s questions–I’m much less confident of his leftward course. And when you factor in the emerging dynamics of the new Roberts Court, it seems even less certain.

Read it all. Then, if you haven’t already, read WLS’s analysis below, which elegantly explains why Jan and I should have seen this coming. It’s one of the best posts WLS has done here.

I’m still plowing through the oral arguments, and want to read the briefs and re-read the cases before I express any further opinions. But these two posts give interested readers a good jumping-off point.

In my next post, I will do something I rarely do, and just give you my gut reaction without resorting to intricate legal analysis.

[Posted By WLS]

In trying to read the tea leaves from yesterday’s argument, there are several subtle points that are critical to understanding yesterday’s hearing on the latest GITMO cases, and where the Court is likely headed.

First, it must be understood that these particular cases were first rejected by the Court before it later reversed course and decided to accept them for this term. In the first instance it takes only 4 votes among the justices to accept a case. But Justices understand that if they vote to take a case with the intention of reversing the lower court, its generally a meaningless effort and waste of time if there isn’t a likely 5th vote to be found. The Justices not voting to review a case are generally satisfied with the lower court decision. So, when the Court first rejected these cases, it meant that in the view of the 4 Justices who have opposed the Administration in the prior GITMO cases, there wasn’t a likely 5th vote to reverse the DC Cir. which had dismissed the detainees’ cases after Congress stripped the lower courts of jurisdiction to entertain the claims.

But the Court reversed itself later and decided to hear the cases after all. Such a decision to reverse its earlier denial would require not 4 Justices, but it would take 5 Justices. So, the general consensus is that for some reason Justice Kennedy reconsidered his earlier decision to deny a hearing, and let it be known to the 4 Justices who have opposed the Administration that he would vote to hear the cases. That presented 5 votes to reconsider the prior denial, and hope for the 4 liberals that Kennedy might vote with them.

But, as with most things involving Kennedy, it’s not that simple.

(more…)

[Guest post by DRJ]

There are many bright, dedicated scientists throughout the US and the world doing excellent medical research. Stories like this illustrate why American medical researchers are among the world’s best:

“The tiny mice didn’t realize that the gas they were inhaling would save their lives as they scampered around a plastic container in a Houston laboratory. In a few hours, these experimental mice — along with others who hadn’t had a turn in the container — would be exposed to pneumonia. All of the untreated mice would die. All that had been exposed to the aerosol would survive.

Conducted by a team of scientists at the University of Texas M.D. Anderson Cancer Center, the experiments demonstrated a concept that could revolutionize the way public health planners approach outbreaks of infectious disease. The aerosol — a purified extract of a common bacterium — stimulates the lungs to vigorously reject pathogens. In addition to finding a bacterium that’s effective for this purpose, the method of delivering it directly to the lungs is important so that the bacterium can boost the immunse [sic] system.”

The scientists tried something new – stimulating the innate immune system to reject all pathogens rather than targeting the adaptive immune system (which is typically done through vaccines) to reject selected invaders:

“The new aerosol targets the innate immune system, which is different from the adaptive immune system that most people are more familiar with. Vaccines — which teach the body to build up antibodies, then recognize and destroy invaders — target the adaptive immune system. Only higher vertebrates, such as birds and mammals, have this component of the immune system.

More common to all life is the innate immune system, which doesn’t recognize specific invaders, but rather generally recognizes and reacts to all pathogens in a generic way. The approach by M.D. Anderson scientists to the pathogens is novel in that it seeks to bolster the innate, rather than the adaptive, immune system. They presented their study results today at the annual meeting of the American Society of Cell Biology in Washington, D.C.

“The aerosol stimulates an innate immune system response in the lung lining that kills the invading pathogens, virtually on contact,” said Brenton Scott, a researcher in Dickey’s lab who led the study.”

The treatment offers protection against pathogens like anthrax even if it’s given just hours before exposure, and it offers some benefits after exposure:

“Unlike vaccines, which must typically be given a week or more before exposure, the new aerosol is highly effective against a host of pathogens — including anthrax, influenza and even bubonic plague — if given just a few hours before infection. The new drug and its delivery system even have some benefit if given after exposure.”

The results were impressive against other pathogens, too:

“In their experiments, the scientists let mice breathe the special, aerosolized bacteria for 20 minutes. Then, within four to 24 hours, the mice were exposed to various pathogens. After that, all of the mice exposed to the Staphylococcus aureus bacterium survived, as did 90 percent of those exposed to influenza A, 60 percent of those exposed to the plague and 30 percent exposed to another potential bioterror agent, tularemia, survived.”

One researcher noted that the brief duration of protection, problems with delivery, and the medical establishment’s long-held preference for vaccines had previously discouraged research in this area:

“Unlike a vaccine, which confers long-term protection, the aerosol provides protection for only a few days.

Dr. David Corry, an assistant professor at Baylor College of Medicine who also has begun working on stimulating the innate immune system to ward off pathogens, said the field is full of potential. “Until recently, no one has thought much about stimulating the innate immune system, partly because while it’s quick on, it’s also quick off,” Corry said. “But this new research shows you can stimulate the innate immune system to be highly protective. This is an idea that has been untapped and an opportunity missed, so it’s something that has great potential for development.”

Corry said several impediments have held up the development of drugs to boost the innate immune system. Foremost, he said, is that targeting this aspect of the immune system rather than the adaptive immune system represents a radical departure from traditional vaccination. Change often comes slowly in science.

And, he said, there are challenges with delivering aerosolized drugs to patients’ lungs. It’s not as easy as taking a pill or receiving a shot because it requires specialized facilities and trained people. Something as simple as an asthma inhaler wouldn’t suffice.”

M. D. Anderson scientists began this research to help cancer patients who are more susceptible to pneumonia and other infectious diseases, but it’s not hard to see how it might also be useful to protect people against bioterrorism. Human trials may begin as early as 2009 and will initially target leukemia patients “whose immune systems are among the most compromised of all cancer patients.”

More good medical news: “Using a new type of stem cells made from ordinary skin cells, U.S. researchers said on Thursday they treated mice with sickle cell anemia, proving in principle that such cells could be used as a therapy.”

As the Instapundit says, bring it on.

— DRJ

[Guest post by DRJ]

Long time Patterico readers won’t want to miss this.

H/T Instapundit.

— DRJ

[Guest post by DRJ]

Two Dallas area teens may face criminal charges for vandalism that came to light because they posted it on YouTube:

“They call it the “Christmas Massacre.” Two teenaged boys videotaped themselves as they drove around smashing Christmas displays with a baseball bat. They yanked holiday lights off trees and bushes and mooned shoppers at Southlake Town Square.

Last night, a sheriff in Massachusetts saw the video on YouTube and called Southlake Police, who were quickly able to identify the boys thanks to information they included in their video. The parents of the 16-year-old boy who posted the video say their son is usually a good boy, and they are devastated.

The Knowltons live in the same Keller neighborhood as the boys. They spent $1,000 and eight hours on their Christmas display. They say they can’t imagine someone taking aim at their family tradition. “I think they think that it’s all in fun, and someday they’ll look back and hopefully feel bad about it,” said homeowner Laura Knowlton.

Police don’t know when the video was recorded, but residents say they heard several reports of a crime like this a couple of years ago.

Southlake police confirm that they have launched a criminal investigation into a video. They are still trying to figure out who all of the victims are, but they do know part of the video was recoded at Southlake Town Square. Officers say if they can prove the damage totals more than $1,500, the boys could face criminal mischief charges.”

I worry about the intelligence quotient of kids and adults who seem to think the internet and YouTube is like Las Vegas. What happens here doesn’t stay here.

— DRJ

[Guest post by DRJ]

UPDATE: Columbus will have to wait one more day. NASA has delayed Atlantis’ launch until Friday due to fuel sensor problems.

NASA’s Space Shuttle Atlantis is scheduled to lift off today at 4:31 EST (3:31 CST) to deliver the European Space Agency’s science module Columbus to the International Space Station:

“Though no stranger to human spaceflight, Europe’s astronauts were eager on Wednesday to leap ahead with the launch of the continent’s first permanent home in Earth orbit.

At NASA’s Kennedy Space Center, ground crews readied the shuttle Atlantis to lift off with the European Space Agency’s school bus-size science module Columbus today at 3:31 p.m., Houston time. Crewed by seven U.S. and European astronauts, the shuttle will speed toward the international space station, where the fliers plan to install the lab named for the 15th century Italian explorer Christopher Columbus, using robot-arm operations and three spacewalks.

“We are very excited and extremely proud of what is happening,” said Alan Thirkettle, manager of the European agency’s nearly quarter-century space station effort.

The new module gives the European alliance an unprecedented foothold in space.”

Europeans see the science module as a steppingstone to space:

“From the orbital lab, scientists and engineers can experiment with high-tech alloys and semiconductors and they can prepare for the human exploration of the moon and Mars.

Moreover, the Europeans hope that Columbus, their astronauts and other contributions to the station will symbolize Europe’s scientific achievements and industrial prowess on a grander scale.

“We will finally own a piece of the station as well as the opportunity to perform world-class research,” Thirkettle said. “The station is a steppingstone for us in the long-term objectives of the exploration of the moon, Mars and beyond.”

The science module Columbus was originally scheduled to deploy on the 500th anniversary of Christopher Columbus’ voyage to the Americas:

“The Europeans hoped to launch Columbus in 1992, the 500th anniversary of Columbus’ voyage to the Americas, then in 2004, but those plans were thwarted by funding problems. The delays were extended, first when Russia joined the space station program after the collapse of the Soviet Union, then by the breakup of the shuttle Columbia in 2003.”

In exchange for NASA’s “overall management of the station, electricity and other utilities, U.S. researchers will have access to half of the new module.”

In summary: Europe is launching a science module named for Christopher Columbus for research and to secure Europe’s foothold in space. A tribute to Columbus coupled with a European claim to space? This sounds like a good project and a fitting link to the past but imagine the PC objections to honoring Columbus and Western imperialism if this had been an American project.

— DRJ

[Guest post by DRJ]

We’ve all seen beauty pageants where the accounting folks come on stage to deliver the sealed and verified results. Here’s one case where the results weren’t that reliable:

“An accounting mix-up led to the wrong woman being crowned Miss California USA, and she’s relinquished her crown to the rightful winner, organizers said Monday.

Christina Silva, 24, was declared the winner of the annual state beauty pageant, but she gave up the title to Raquel Beezley, who was originally named the second runner-up. Beezely, 21, will represent the state at the Miss USA pageant next April.

The pageant’s state director, Keith Lewis, said several judges questioned the results of the Nov. 25 competition at the Orpheum Theater in Los Angeles. Lewis said the error was discovered the next day after the ballots were opened and recounted. “It was a simple human error,” Lewis said.

Silva has hired an attorney and is weighing her legal options, according to her manager, Tony Brewster. In a news release, Silva said she felt pressured to step down.

“They never could explain their accounting error, but told me that if I didn’t give up my crown to Miss Barstow, my personal integrity could be questioned, and my career could potentially suffer,” she said.

The contestants were scored by five celebrity judges who independently ranked them. The mix-up occurred when the points were reversed, with the lowest point given to the winner and the highest to the fourth runner-up, Lewis said.”

To be fair, it’s not clear if this was an error by the accountants or the judges. However it happened, I feel sorry for Ms. Silva.

— DRJ

Radley Balko has a post that reads as follows:

The NY Times has a good overview of the felony murder doctrine, using the following case as its jumping off point:

Early in the morning of March 10, 2003, after a raucous party that lasted into the small hours, a groggy and hungover 20-year-old named Ryan Holle lent his Chevrolet Metro to a friend. That decision, prosecutors later said, was tantamount to murder.

The friend used the car to drive three men to the Pensacola home of a marijuana dealer, aiming to steal a safe. The burglary turned violent, and one of the men killed the dealer’s 18-year-old daughter by beating her head in with a shotgun he found in the home.

Mr. Holle was a mile and a half away, but that did not matter.

I’ve never liked the felony murder charge or, for that matter, any crime that doesn’t require the state to prove intent. It’s just too easy for prosecutors to stretch the doctrine to absurd lengths too quickly. Maybe this guy should have been more careful who he lent his car to. Maybe he shouldn’t have drank so much. Maybe he shouldn’t have been partying with such shady characters. But life in prison? Come on.

Just like the last time our libertarian friends attacked the felony murder rule, there’s more to the story than meets the eye.

Balko’s post makes it sound like this fellow simply lent his car to some people, without any idea that they were going to go commit a burglary or hurt anyone.

But when you read the article linked in Balko’s post, you learn that not only had Holle “given the police a series of statements in which he seemed to admit knowing about the burglary” before lending the burglars the car, but he also “did testify that he had been told it might be necessary to ‘knock out’ Jessica Snyder.”

Instead of merely knocking her out, the burglars knocked her dead. This sounds like it was foreseeable to Mr. Holle, who knew the burglars were contemplating a burglary with possible violence involved.

Holle now claims he thought the burglars were joking when they talked about the burglary they were going to commit. But a jury convicted Mr. Holle, meaning they didn’t believe that. I’m viewing the facts in the light most favorable to the prosecution’s position, just as an appellate court will. The jury’s verdict necessarily means they believed Holle knew about the planned burglary in advance.

In other words, Mr. Holle didn’t just lend his car to some buddies. He lent his car to some people who said they were going to use it to drive to do a burglary, during the course of which they might “knock out” the victim.

Rational people can debate whether this defendant should be serving life in prison for his actions. But there’s plenty more to this story than the casual reader can discern from Balko’s post. Contrary to the implication of his post, the jury found that this is not a simple story of someone innocently lending friends his car.

I’ll say this for Balko, though; he has opened his site up to comments, so that I was able to register the above complaint on his site (or will be able to, when my comment is approved). That’s a good thing.

UPDATE: Balko updates his post and says (among other things):

A few people have made the point that I should have included in the excerpt the fact that the guy initially told police the men who borrowed his car were about to commit a robbery and may have to “knock” someone “out” in the process. They have a point. I should have, if only to help you come to your own better informed decision.

It didn’t affect my opposition to the charge, though, because the guy also said he was drunk, and thought his friends were joking. So his crime here seems to have been an error in judgment. Or maybe an error in judgment affected by drinking too much.

Or, just maybe, he’s a criminal who’s telling a self-serving story after his conviction.

The scenario painted in the above quote, if believed by a jury, would have garnered Mr. Holle an acquittal. Either it wasn’t presented to a jury — or it was, and they didn’t believe it.

12 people concluded beyond a reasonable doubt that Holle specifically intended to aid and abet a burglary — one which explicitly contemplated violence. While juries get things wrong from time to time, their judgments should be accorded respect — in the absence of a specific reason to question them. No such reason is apparent from the NYT article.

Balko simply accepts the word of a convict as sufficient to negate facts found by 12 citizens beyond a reasonable doubt.

If all it takes is a convict’s uncorroborated word to prove that a jury got it wrong, then we might as well unlock the prisons, because almost any prisoner is willing to spin a tale that flies in the face of the facts found by his jury.