Black Lives Matter Protesters Claim Innocence of Touching Racist State Sen; D.A. Bows to Lack of Evidence, Makes No-Jail Offer

No Deal, Say Black Lives Matter Workers, as D.A.'s Office Wants Beyond Reasonable Doubt Charging Standard Changed to Reasonable Inference for This Case
 
Updated - Madison, Wisconsin — There is no evidence that two Dane County women ever laid a finger on State Sen Tim Carpenter (D-Milwaukee) at a late-night June 23, 2020 confrontation at a Black Lives Matter demonstration.

Still, a criminal case against Kerida O’Reilly and Samantha Hamer remains at the behest of the anti-Black Lives Matter (BLM) state legislator who has championed prisons and police and the drug war, before confronting a BLM demonstration, then launching a media-political blitz that included accosting a black state Senate candidate in a tirade for which Carpenter apologized and admitted he was "rash and reactionary." [See, for example, news coverage SpectrumNews1, WTMJ, Fox News.]

There is no video showing the women —  Kerida O’Reilly and Samantha Hamer, well-regarded  community activists and Black Lives Matter supporters — ever laid a finger on Carpenter.

Both civil rights workers are being prosecuted for the felony crime of Substantial Battery with Intent to Cause Bodily Harm and Party to a Crime, a galling and even more disingenuous charge. 

Hypothetically, the D.A. could charge anyone near the confrontation that Carpenter began with being Party to a Crime.

Bowing to the ridiculous lack of evidence, "The two people charged with the beating of a state senator have been offered a deal by prosecutors that would include no jail time and deferred prosecution," WKOW-TV (Galli, Madison) reports this weekend.

No Deal, Say Black Lives Matter Workers

Reports Tony Galli:

'My client rejected the proposed plea offer because it would have required an admission of guilt, and my client, quite simply, is not guilty,' O'Reilly's attorney Jessa Nicholson Goetz says. 'We will not be resolving this matter for anything short of a dismissal because that is what we believe justice requires.'

The deferred prosecution program would technically lead to a dismissal of O'Reilly's charge if program requirements were met.

'Due to ethical rules, I can’t comment on the specifics of any negotiation at this point,' says Hamer's attorney, Adam Welch. 'However, it has always been our position that Ms. Hamer is innocent of the charge that has been brought against her, so she has no intention of pleading guilty to something she didn’t do.'

No eyewitness has identified the accused as laying a finger on Carpenter.

Madison police detective Linda Trevarthen, who headed the investigation, also swore under oath no witness interviewed saw the two women touch Carpenter, in a hearing last Summer (Rickert,  Wisconsin State Journal).

Tim Carpenter says he cannot identify Mses. O’Reilly and Hamer as ever having touched him.

It's not surprising noone can identify anyone else, because according to Carpenter and another witness, the confrontation that Carpenter incited included some eight to 10 people during a chaotic melee around Midnight.

No matter. Carpenter and the Dane County District Attorney's office continue their criminal pursuit of the Black Lives Matter protesters, two socially conscious women in their 20s with no criminal records, who nevertheless stand accused of the felony crime at the Black Lives Matter protest held last Summer in reaction to the police torture and killing of George Floyd.

Dane County District Attorney Office Changes Its Charging Standard for This Case

Mses. O’Reilly and Hamer have maintained their innocence since the June 2020 protests.

The Dane County District Attorney’s Office say it only charges defendants when its office can prove charges to a trial jury beyond a reasonable doubt.

This oft-made proclamation that the standard of beyond a reasonable doubt is used to determine charging decision is demonstrably untrue in the O’Reilly and Hamer cases.

See, for example, for the announcement, "Ismael R. Ozanne said that the Dane County District Attorney’s Office is declining to prosecute [xx] because there is not enough evidence to prove beyond a reasonable doubt that he is guilty" (WISC-TV. 2018).

Beyond a reasonable doubt.

Even Asst District Attorney William Brown, known for over-the-top prosecutions and Manichean posturing in court, admitted in August 2020 that, "We don’t know exactly what happens after that other than we have a witness that says various people began kicking and punching. There is a reasonable inference that those two people who are aggressively running at him are the ones involved in the exact same incident" (Rickert, Wisconsin State Journal).

Notice what Brown did at the August hearing?

Brown replaced the finding of criminal guilt beyond a reasonable doubt as the standard used by the District Attorney's office to determine charging with a reasonable inference.

The District Attorney need not use such a high burden of proof — guilt beyond a reasonable doubt — as the basis to determine whether to bring criminal charges, but the Dane County District Attorney office claims it does.

However, guilt beyond a reasonable doubt as the standard of proof that a jury must reach to find a criminal defendant guilty is a bedrock principle ensuring the presumption of innocence, as guaranteed by Due Process Clauses of the Fifth and Fourteenth Amendments.

Consider two points.

One. The Dane County District Attorney’s Office is proceeding on a case that nowhere approaches guilt beyond a reasonable doubt.

Two. The two Black Lives Matter protesters could agree to a deferred prosecution agreement, never set a foot in jail and have the charge stricken from their records.

Both women refused the offer because no reasonable jury can ever find these women guilty of any crime, and because they are innocent.

Why the change of charging standards for this case?

Because Ozanne's conduct in his elected office of public trust is an example of a civil servant working under the color of law, substituting his perceived political expediency to displace the community, the Constitution and his duties.

The Dane County District Attorney’s Office should be ashamed.

But shame in law enforcement is difficult to locate.

I wrote the District Attorney an email last Summer. 

The email is reproduced below:
--
Ismael,

As a member of our community, I have followed with grave concern the cases of Kerida O’Reilly and Samantha Hamer.

I am aware that you do not know how, and by whom and with what force violence was inflicted in the confrontation among Tim Carpenter and depending on whom you believe — the police quote a journalist saying some ten people, you say two people — and those who may be criminally responsible.

Did these two women use their elbows, fists, feet, head, or blunt instruments? You have no idea, yet you are charging them with being party to substantial battery by undetermined persons, a "group," as Carpenter told police.

Are you satisfied with Carpenter's credibility?

Did you know Mr Carpenter did not request medical assistance after speaking with protest medic and peacekeepers, as indicated in audio published by WORT News.

Did you know that after a WKOW-TV crew member phoned 911, Carpenter declined to go to the hospital?

Have you checked out Carpenter's story and timeline of the evening of June 23 and early morning of June 24?

Have you viewed video of Carpenter's 'collapse' performed right in front of WKOW-TV?

Do you ascribe responsibility to Mses. O’Reilly and Hamer because they are convenient faces on a video?

Carpenter said he was attacked by a "group." Yet, you divine O’Reilly and Hamer?

I ask you to drop these bogus cases, and issue a public apology to Kerida O’Reilly and Samantha Hamer, and Black Lives Matter.

Mike

Michael Leon
Marketing and Public Relations Consultant
http://malcontends.blogspot.com/

Trump Escalates Republican War Against Voting in Cuckoo Recount Effort

Jacob Lawrence - from the Migration Series (1940–41)

Updated - Madison, Wisconsin — In modern America, the Republican Party's war against voters is waged as a full-spectrum assault against liberty, accelerating in the last ten years.

Destroying black and brown lives, stripping human beings of dignity and liberty, have long been sport for white folks here. But Republicans have escalated  systemic destruction of the foundational right to cast votes (see Article III, Wisconsin Constitution; Ballotpedia).

Trump's new effort to ultimately convince courts to declare that 100,000s of voters' ballots are illegal is the latest of this anti-human project.

Trump's campaign gives County Canvassing Boards names of disfavored voters and says, throw out these ballots.

Extreme action for certain, but business as usual in a broader sense.

I worked as a Wisconsin election inspector (poll worker), for some 60 shifts between 1998 and 2016.

It used to be funny — because it was pathetic — to witness the sudden chill in the room, uncomfortable shifting in chairs, worried expressions of white poll workers morphing into grimaces bordering on disbelief as young black men entered the polling place in the morning shift at the old Fire Station Number Two in Fitchburg, Wisconsin (Alder Dist One).

Well, who can blame the white folks? 

You should have seen the voters' black hair, dark-brown skin, often adorned in golden jewelry and tight dark tee-shirts of I don't know what. You know what they do, who they are. 

And our white votes get cancelled out by these guys?

It's the way it is.

White poll workers and the Fitchburg City Clerk's office were not amused by black folks. In fact, they were hostile to anyone who reported Fitchburg racism. I know. [By the way, anecdotal reports from the 2020 presidential general elections indicate the voting experience is getting better now.]

This is Wisconsin, so it may surprise readers what one becomes inured to, but from a first-person stand-point, I can say I tried to alert the political world about Fitchburg. See also Kaleem Caire, president and CEO of One City Learning Centers, and his experience with Fitchburg.

Nothing surprises me here.

Trump's latest absurd forays into obliterating swaths of voters can be seen as a continuation of white efforts to troll black and brown folks, ongoing Republican work to transform election law to stop non-Republican voters and a heightened operation against entire jurisdictions such as Dane County and Milwaukee County. (See Beck, Glauber and Marley, Milwaukee Journal-Sentinel, Nichols, The Capital Times).

In 2016, in the voting rights litigation, One Wis­con­sin Insti­tute v. Thom­sen, much Repub­li­can vot­er-obstruc­tion leg­is­la­tion was swept away, opening up metro voting districts to help voters vote and have those votes count.

Of course the Republican legal empire struck back.

In June 2020, Judge Frank Easterbrook, from the Seventh Circuit, using his propensity to play loose with facts, penned Luft v Evers; One Wisconsin Institute, Inc. v Jacobs, (Nos. 16-3003, 16-3052), (Marley, Milwaukee Journal-Sentinel).

Easterbrook reinstated most of the Republican-enacted restrictions on early voting.

Easterbrook sees no racism in Republicans' Wisconsin election law, as long the Republican Party's animus toward minorities includes an animus toward Democrats. A bizarre judicial doctrine.

Crazy is the order of the day.

You hear about the Trump campaign attorney heading up the stop-the-ballots effort here? 

Trump's lead attorney, Jim Troupis, and his wife's votes would be invalidated, were Trump to prevail in his current recount-and-stop ballots efforts in Wisconsin (see Beck, Milwaukee Journal-Sentinel, and Law and Crime). 

This is because Trump wants early voting, (in-person, absentee), votes invalidated in Dane and Milwaukee counties. 

One can think of a few Due Process and Equal Protection problems with Trump's sought-after remedy for an imagined injury at the hands of Dane and Milwaukee counties.

Bear in mind, limiting early voting and racial intent and effect in Republican efforts to halt voting in jurisdictions where black and brown people live is fine, [no Constitutional problems], with Easterbrook.

But even Easterbrook, were this case to reach the United States Court of Appeals for the Seventh Circuit, would recoil.

It's crazy time in Wisconsin, but crazy is pretty much standard-going the last ten years, and is consistent with Wisconsin's secular religion: Most white folks really don't like black and brown people very much.

Evidence "Inexplicably Released" — Wisconsin Attorney General Josh Kaul Defends Concealment in Filing; Famed Wrongful Conviction Attorney Zellner Signals New Disclosure of State Deception This Week

The work of wrongful conviction attorney,
Kathleen Zellner will likely lead to the exoneration
of two innocent men. A second-order consequence
of Zellner's work is the exposure of the most
spectacular law enforcement scandal in
Wisconsin history that could ultimately lead
to the downfall of Wisconsin Attorney
General Joshua Kaul (D).

Updated: Madison, Wisconsin — Wisconsin Attorney General Joshua Kaul (D) is trying to stop the exoneration of Steven Avery, the wrongfully convicted man featured in Making a Murderer.

The state Dept of Justice's (DoJ) legal effort defending a police frame-up in post-conviction litigation is drawing howls across the world.

Calls abound for the DoJ to change its continuing concealment efforts in this litigation, agree to new DNA testing and change its conduct that appears unethical, and arguably criminal.

The post-conviction ligation is, State v. Steven A. Avery, Appeal Number 2017AP002288, now before Manitowoc County Circuit Court.

In its late-March legal filing, the DoJ argues procedural objections to Avery's charges of bad-faith evidence destruction, deceit, concealment and deception, all of which present Due Process questions, (Steven Avery legal filings; #Work with KZ, WBAY, WLUK).

Continuing its strategy of avoiding mention of charged state lawlessness in appellate court, the State's conduct now before County Circuit Court again appears striking in avoidance of the merits of Avery's charges that the Calumet County Sheriff's Office secretly transferred evidence, the remains of a murder victim, Teresa Halbach, to private custody in 2011, in violation of state statutes that govern preservation of physical evidence collected; among other allegations.

Commenting on the State's March 29, 2019 legal filing in Newsweek Magazine, Avery's post-conviction attorney, Kathleen Zellner, said:

Wisconsin Dept of Justice is painting itself into a corner
in its effort to keep innocent men in prison. "The State
is thumbing its nose at the appellate court once again,"
wrongful conviction attorney Kathleen Zellner told Newsweek
on April 2. "That court specifically ordered that the merits of the
alleged bone destruction be addressed. Rather than follow the
court's directive, the State has constructed a convoluted
procedural argument that defies logic or precedent."

'Of course the State cannot address the merits of Avery's claim, because it is blatantly guilty of evidence destruction. Its charade continues without the slightest inclination to discover the truth. Significantly, one of the culprits in the whole sad scenario authored the State's Response. Unfortunately, the citizens of Wisconsin are the recipients of this mockery of justice.'

Zellner’s last point refers to the DoJ litigation team and Thomas Fallon, who helped oversee the decision to return the alleged human bones to the Halbach family. Fallon wrote the state’s response, according to Zellner.

The post-conviction ligation is State v. Steven A. Avery, (Appeal Number 2017AP002288), now before Manitowoc County Circuit Court.

Before Zellner won her motion for a remand (sending back) the case to Circuit Court, Zellner argued in her Feb. 1 legal filing.

The [State] ... conveys an attitude of impunity for its past actions of withholding exculpatory evidence and its current action of continuing the concealment of its destruction of potentially exculpatory or useful evidence. ...

The State wants this Court to overlook the undisputed fact that 2 weeks ago, on December 28, 2018, when it filed its response to Mr. Avery's request for new DNA testing of the bones from the Manitowoc Gravel Pit, it never once admitted or disclosed that it had given the bones back to the Halbach family in 2011 without notice to Mr. Avery or his counsel. (Plaintiff-Respondent's Response in Opposition to the Petition to Stay the Appeal and Remand this Case to the circuit court, December 28, 2018, pp. 1-8). Instead, the State carried on its charade of concealment by claiming that Mr. Avery could voluntarily dismiss his pending appeal (pp. 1,2) (emphasis added).

The Court of Appeals agreed with Zellner, (Wisconsin Court of Appeals, Feb. 25, 2091).

The sheer multiplicity of law enforcement misconduct makes this litigation a spectacle.

Now, the deception of the DoJ attorneys in defending this miscarriage of justice threatens to become another spectacle, a la attorney state attorney Mark Williams leaving a Feb errant voicemail message to Thomas Fallon plotting how to mislead Zellner.

And Fallon along with state attorney Norman Gahn not only worked together to illegally destroy evidence, the two DoJ attorneys are now writing legal filings opposing Zellner's March 11 call for a reversal or new trial.

Zellner claims convincingly to have uncovered at least six Brady violations committed by the prosecution, any one of which could result in a new trial or reversal.

Stay tuned this week:

Avery Update: The court will be hearing from us this week. The deeper we dig the more deception we uncover. I guess they do not realize the whole world is watching. ⁦@lifeafterten⁩ ⁦@michellemalkin⁩ ⁦@Newsweek⁩ ⁦#MakingaMurderer https://t.co/EGXlKYwY8o

— Kathleen Zellner (@ZellnerLaw) April 7, 2019

Petition Demanding Corrupt Wisc Judge Step Aside Gets over 25,000 Sigs; Making a Murderer Case Developments Signal Renewed Hope for Wrongful Conviction Opponents

Update: See new Newsweek piece with comments by Kathleen Zellner.

Madison, Wisconsin — A new legal filing by Wisconsin Attorney General Joshua Kaul (D) frightened people around the world fighting for freedom for the wrongfully convicted Steven Avery and Brendan Dassey, featured in Making a Murderer (WBAY, WLUK).

The serpentine March 29 State filing is trademark Kaul: Hostile to truth, facts and circumstances that saw the State break Wisconsin law concerning evidence preservation, conceal evidence and lie repeatedly about the misconduct, even to the Court and opposing counsel, as part of Kaul's effort to keep innocent men imprisoned.

Advocates are recipients of a message this morning from attorney Kathleen Zellner, renown wrongful conviction fighter representing Steven Avery in post-conviction litigation.

The 11-word message that is posted on Twitter reads: "We reviewed the State's Response yesterday and it made us................SMILE."

We reviewed the State's Response yesterday and it made us................SMILE.@lifeafterten @michellemalkin @Newsweek @RollingStone @guardian #MakingAMurderer2

— Kathleen Zellner (@ZellnerLaw) April 2, 2019

Zellner has this post-conviction litigation gamed out. Her confidence is well-placed, and Kaul is not the first unethical prosecutor Zellner has faced.

The post-conviction ligation, State v. Steven A. Avery, Appeal Number 2017AP002288, has been sent back to Manitowoc County Circuit Court.
---
In other developments, the demonstrably conflicted, biased Sheboygan County Circuit Judge Angela Sutkiewicz who is hearing State v. Avery in Manitowoc County Circuit Court as a substitute judge is expected to reject a March 11 motion to recuse herself from the case.

Sutkiewicz knows she has no business anywhere near Steven Avery's litigation that now looks likely to result in exoneration. This is precisely why Sutkiewicz is refusing to budge from State v. Steven A. Avery, Appeal Number 2017AP002288. Sutkiewicz remains hostile to Avery.

Advocates world-wide began a petition in March demanding Sutkiewicz remove herself from the case, citing conflicts.

The petition has now garnered over 25,000 signatures.

The State argued extensively in its filing that Judge Angela Sutkiewicz need not recuse. The prosecution knows it's well-served by a corrupt judge.

Wisconsin in Waiting Mode for Democracy Protection and Restoration

Madison, Wisconsin—Citizens here are waiting for a ruling from the United States Supreme Court to find out if democracy will survive in Wisconsin.

Republicans have transformed election law to obstruct voters, empowered white poll workers to suppress voters, gerrymandered state and congressional districts to elect as many Republicans as possible, infused dark money, among other anti-democracy efforts.

The objective is to enact Republican public policy in opposition to the public will.

One example is the legislative and administrative law attack on clean and safe water creating a crisis that has sent children to the Emergency Room, imperiled the health of communities and polluted rivers, streams, lakes and aquifers

Gov. Scott Walker threw in a new voter obstruction technique this year: Refusing to hold elections to fill vacant legislative seats.

In state senate district one in northeastern Wisconsin, State Sen. Frank Lasee, (R-De Pere), resigned in Dec, 2017. Gov. Scott Walker has publicly refused to call a special election that most observers believe the GOP would lose though the district is gerrymandered Republican.

The Democratic Party of Wisconsin to this point has not launched a public case calling for a special election. One Door County resident in senate district one told me, "nobody is doing anything, the Democrats?" He laughed.

Can you imagine if the roles were reversed? Republican outrage would blanket news coverage across the state.

Progressive writers are making the legal and political case for special elections, and it's writers filling the void where one would reasonably expect the Democratic Party to be.

Meanwhile, voters wait for the Supreme Court to rule on the Gill v. Whitford gerrymandering case from Wisconsin, in light of positive legal developments for voters and democracy against North Carolina Republicans.

From the Raleigh News Observer:

Rick Hasen, a professor at California-Irvine, is often said to be the nation’s leading election law expert. Hasen wrote that the decision could hardly be seen as a surprise, given what our legislature did. 'If there is any case that could be invalidated as a partisan gerrymander, it is this one,' he indicated. It is 'the most brazen and egregious' political electoral distortion yet seen in the United States. North Carolina leaders 'admitted the practice, but argued it should be seen as perfectly legal.'

The Supreme Court stayed the federal court ruling pending appeal. And it is unlikely the review will be squeezed into the current term, given the late scheduling adjustments that would be demanded. The court presently has two political gerrymandering cases on the docket. But Hasen thinks the impact of the North Carolina decision will be felt immediately. The court now knows 'what the future of gerrymandering will look like if it is doesn’t act in the Wisconsin or Maryland cases,' Hasen wrote.

The future would look even better with an energetic, activist and effective Democratic Party of Wisconsin safeguarding democracy.

Now, we look mostly to the courts for that kind of thing.

Supreme Court's Aversion to Social Science Is Perverse

Gill v Whitford Gerrymandering—An Easy Case That Would Destroy Republican Rule

Updated: Housing-discrimination litigation in federal court since the 1960s has often relied upon social scientific evidence — the Taueber dissimilarity and progeny measures — to demonstrate residential and urban segregation, a phenomena akin to American apartheid.

Milwaukee, site of the 2020 Democratic National Convention, remains the most segregated metropolitan urban area in the country, the perennial champ, (WISN News). It's apropos the DNC holds its fete in Milwaukee, as Wisconsin is the state on which the Court punted a decision to protect liberties.

Mayor Tom Barrett (D) is a de facto supporter of segregation and racial discrimination including routine violence, especially when committed by the Milwaukee police, who work with the assurance Barrett has their back. At his best, Barrett is inadequate.

Barrett and much of the United States Supreme Court share a disdain towards empirical science as a tool of demonstrating and remedying unyielding features of American society — racism, segregation and police violence.

While the Democratic Party is picking likely the next president in Summer 2020, the Supreme Court will have decided in the Summer 2019 if the constitutional rights of citizens to vote are expansive, and whether social science can be again sanctioned as a means to demonstrate the latest iteration (redistricting) of the American project of denying rights for the purposes of maintaining power over individual liberty.

How the Democratic Party fares in this affair is an open question, about to get more explosive in the next 14 months than at any point in modern American history, as progress on civil rights could be set back 55 years.


Rucho v. Common Cause, Lamone v. Benisek will determine the fate of American democracy.

Milwaukee 2020 will offer a major reaction to these landmark cases determining for one thing the direction of Democratic administrations of major urban areas, and the role of the president against what could be a Supreme Court ripping up rights by rights at the direction of white fascistic Party.
---

Earlier this month [October 2017] at oral argument of the likely precedent-setting Wisconsin gerrymandering case, Republican justices displayed an obtuse mind-set revealing an incapacity to consider social scientific findings in determining whether a statute is unconstitutional, (Gill v. Whitford, Cornell, - Gill v. Whitford, MortizLaw, - Gill v. Whitford, U.S. Supreme Court).

Writes Oliver Roeder this morning at Five-thirty-eight.com:

The Supreme Court does not compute. Or at least some of its members would rather not. The justices, the most powerful jurists in the land, seem to have a reluctance — even an allergy — to taking math and statistics seriously.

For decades, the court has struggled with quantitative evidence of all kinds in a wide variety of cases. Sometimes justices ignore this evidence. Sometimes they misinterpret it. And sometimes they cast it aside in order to hold on to more traditional legal arguments. (And, yes, sometimes they also listen to the numbers.) Yet the world itself is becoming more computationally driven, and some of those computations will need to be adjudicated before long. Some major artificial intelligence case will likely come across the court’s desk in the next decade, for example. By voicing an unwillingness to engage with data-driven empiricism, justices — and thus the court — are at risk of making decisions without fully grappling with the evidence.

This problem was on full display earlier this month, when the Supreme Court heard arguments in Gill v. Whitford, a case that will determine the future of partisan gerrymandering — and the contours of American democracy along with it. As my colleague Galen Druke has reported, the case hinges on math: Is there a way to measure a map’s partisan bias and to create a standard for when a gerrymandered map infringes on voters’ rights?

It's not that rightwing justices like Thomas, Gorsuch, Roberts and Alito cannot comprehend empirical investigation. It is that they do not care to when they are presented findings that point to a remedy helping disfavored segments of the population against whom these legal politicians have been appointed to work.

Without a United States Supreme Court ruling protecting Americans from the Republican Party's gerrymandering drawn after computer simulation after simulation to effectively take citizens out of the loop in democratic elections, Republican rule over citizens is all-but-guaranteed in the future.

In response to the early October oral argument of Gill v. Whitofrd, Nicholas Stephanopoulos, professor at the University of Chicago Law School specializing in election law, penned a column in Slate Magazine spelling out the criteria identifying an unconstitutional gerrymanders. (See also Stephanopoulos Explains the Research that Convinced SCOTUS to take the Wisconsin Gerrymandering Case.]

Writes Stephanopoulos:

As one of the attorneys for the plaintiffs, I was able to attend Tuesday’s oral argument in Gill v. Whitford. At the argument, the justices probed, among other things, how the plaintiffs’ test for partisan gerrymandering would work, how reliable the social science is that underpins this test, and what the test’s implications would be for judicial involvement. Since the plaintiffs’ theory relies in part on my academic work, I’m in a good position to address these issues.

With respect to the test’s operation, Justice Gorsuch warned that a gerrymandering standard should not be like a 'steak rub.' That is, it should not be imprecise and opaque in its makeup: 'I like some turmeric, I like a few other little ingredients, but I’m not going to tell you how much of each.' In reality, the plaintiffs’ proposed test for adjudicating gerrymandering claims is more akin to a detailed recipe than a mystery stew. The test has four elements, and litigants would be required to go through them one by one, proceeding to the next phase only if they satisfied the previous criterion. These four elements are:

1. Was the district plan enacted with the discriminatory intent of benefiting one party and handicapping another one? Maps drawn by a single party in full control of the state government often (but not always) have this motive.
   
   
2. Has the plan exhibited (or is the plan forecast to exhibit) a historically large partisan asymmetry? A partisan asymmetry means a map does not treat the parties equally in terms of how their votes translate into seats. A map’s asymmetry can easily be calculated and then compared to historical data to determine if it’s unusually big.
   
   
3. Is the plan’s partisan asymmetry durable? To find out, a range of plausible election results should be considered. A map’s asymmetry should be deemed persistent enough only if it would endure across this range of outcomes.
   
   
4. Is the plan’s partisan asymmetry unjustified? At this final step, the gold standard is to use a computer algorithm to simulate many maps that satisfy the state’s legitimate redistricting criteria. The challenged plan’s asymmetry is unjustified only if it exceeds that of most of the simulated maps.

Under this approach, there would be some easy cases, like the Wisconsin State Assembly plan at issue in Whitford. This plan’s authors admitted its pro-Republican intent. Its partisan asymmetry is worse than that of any map nationwide between 1972 and 2010. Its asymmetry would persist even if there was a massive Democratic wave. And its asymmetry is larger than that of any simulated assembly map. Conversely, it’s clear a plan would be upheld if it was designed through a bipartisan or nonpartisan process, if its asymmetry was historically small, if its asymmetry would disappear under slightly different electoral conditions, or if it was no more asymmetric than most simulated maps.

In playing dumb, social dominators like Gorsuch, Alito, Roberts and Thomas continue a sordid tradition in federal litigation of liberty claims the last 65 years. Unequal public schools? Public accommodation of ethnic minorities? Housing discrimination? Equality of law and processes? Voting? What? Do we litigate every public functioning and process if someone makes a liberty claim?

It may not seem like it at the moment, but Republican rule is imperiled as at any point in post-World War II history, and Gill v. Whitford is one of the last chances Republicans have to hang onto to power for 50 years against the will of the population.

One must hate the fact that Anthony Kennedy has become the pivotal vote again in this critical case for Americans when this man is mired in mediocrity.

Richard Posner Blows Whistle on Federal Judiciary

Readers note persuasively that career-changing federal appellate Judge Richard Poser blew the whistle on the federal judiciary as a whole as intellectually dishonest pols pursuing results in federal litigation.

Judge Richard Posner announced his resignation from the Court of Appeals for the Seventh Circuit earlier this month.

In an exit interview with Adam Liptak in the New York Times, Posner made comments implicitly and explicitly critical of federal judges, in response to Liptak's questions: 

'Judges are simply applying rules, and the rules come from somewhere else, like the Constitution, and the Constitution is sacred. And statutes, unless they’re unconstitutional, are sacred also.'

'A lot of the people who say that are sincere,' he said. 'That’s their conception of law. That’s fine.'

He said he had less sympathy for the second camp [of his critics]. 'There are others who are just, you know, reactionary beasts,' he said. 'They’re reactionary beasts because they want to manipulate the statutes and the Constitution in their own way.'

That judges at every level of the judiciary seek results over the law is obvious.

Judges because their actions matter to real people are a destructive and worrisome force, largely unexamined in American society, and actors whose duplicity is cringe-worthy.

Judge Richard Posner Quits Bench, Hits "Reactionary Beasts" as Unfaithful to Constitution

The sudden news this month that an intellectual is resigning from the Court of Appeals for the Seventh Circuit should cause alarm about the future of liberty claims in federal litigation.

Judge Richard Posner announced his resignation as the federal judiciary branch is populated by ever-more brazen rightwingers and politicians.

Notes Adam Liptak in the New York Times this morning in a column on Posner's resignation:

In emphasizing social utility over, say, principles of fairness and equality, he gained a reputation as a cold and calculating conservative.

That changed over time, and his recent opinions on voter ID laws, abortion, same-sex marriage and workplace discrimination based on sexual orientation have been decidedly liberal.

Liberal as in recognizing the Constitutional rights of American citizens that used to guide consideration of litigation in the federal courts.

New York Times is worth a read this morning on the career and influence of this public intellectual.

Despite the self-importance with which the federal judiciary, and most judges, conduct themselves, Posner casts most judges as anti-intellectual, especially rightwingers of whom he says, "There are others who are just, you know, reactionary beasts. They’re reactionary beasts because they want to manipulate the statutes and the Constitution in their own way."

Civil Liberties Win Against Police-Prosecutor State in Odonnell v. Harris County

Odonnell v. Harris County, Texas, (Civil Action No H-16-1414)

Madison, Wisconsin — There's a story in Dane County Wisconsin that's been circulating among jurists, academics, journalists and myriad civil liberties activists for years.

The story goes like this: A civil liberties activist and a cop are sharing a ride, making small talk.

As the car proceeds, the cop repeatedly points out the window to pedestrians on the sidewalk or crossing the street, saying, "he's a perp[atrator]" and "she's a perp[atrator]," noting the cloths worn, posture taken, the gait (one's manner of walking), and other visible traits purportedly marking people as latent criminals.

The black and brown criminal pedestrians were apparently the easiest to spot; I mean what's this young, black dude up to, if not trouble. This is profiling, not policing.

As pretextual stops of cars continue, (drivers are easier to pull over than pedestrians), municipal police are armed with a powerful weapon to imprison perps, and the perps don't even have to be convicted of a traffic offense: Cops just cite drivers for whatever they can think of and sympathetic judges will set bail for $1,000s and some perps can't pay so the perps stay in jail. Problem solved. [Worked great for Sandra Bland who eventually committed suicide; Ms. Bland had often criticized police for killing people so tossing her in a cell was justice, in the minds of many municipal police.]

Pre-conviction fines, court deposits, bails do not have to originate from traffic violations, any civil citation will do, and with respect to clear violations of equal protection and due process: Tell it to the judge. This means a lot of latent criminal folks land up in jail.

Now comes a major civil liberties case out of the United States Court for the Southern District of Texas, (Houston Division), heard by Lee H. Rosenthal, Chief, United States District Judge, (Ballotpedia), (Federal Judicial Center).

The case is Odonnell, et al. v. Harris County, Texas et al, (Civil Action No. H-16-1414). Odonnell may end this despicable practice of municipal police and court systems.

Writes Lee Rosenberg in the New York Times in late April 2017:

A federal judge in Houston has overturned the county’s bail system for people charged with low-level crimes after finding that it disproportionately affected indigent residents and violated the Constitution.

The judge, Lee H. Rosenthal of Federal District Court, ordered Harris County to stop keeping people who have been arrested on misdemeanor charges in jail because they cannot pay bail.

The ruling, part of a civil rights lawsuit against the county, came Friday in a case that began when a woman was arrested on a charge of driving without a license and spent more than two days in jail because she could not post $2,500 in bail.

Judge Rosenthal wrote in the ruling, 'Harris County’s policy is to detain indigent misdemeanor defendants before trial, violating equal protection rights against wealth-based discrimination and violating due process protections against pretrial detention.' She cited statistics showing that 40 percent of people arrested on misdemeanor charges in the county had been detained until their cases were resolved.

The order is not final; it is a temporary measure as the larger case works its way through the courts. But legal scholars and the groups that brought the case said the ruling was a victory in the movement to overhaul the bail system that has been growing around the country. Judge Rosenthal’s order came after eight days of witness testimony and the presentation of volumes of evidence — 300 written exhibits, and 2,300 video recordings of hearings in which bail was set.

A May 5 New York Times editorial spells out what is at stake in Odonnell:

Maranda Lynn ODonnell, a 22-year-old single mother in Harris County, Tex., was arrested last year for driving without a valid license. The judge set her bail at $2,500. She couldn’t afford anything close to that, so she spent three days in jail — even though she posed no risk of skipping town or endangering anyone if she were released.

'In our society,' the Supreme Court has held (in) [United States v. Salerno 481 U.S. 739 (1987)], 'liberty is the norm, and detention prior to trial or without trial is the carefully limited exception.' Yet across America, poor people like Ms. ODonnell are held in jail for days, weeks or even months solely because they don’t have the cash to bail themselves out. All of them are presumed innocent under the law, and many may in fact be innocent, yet most plead guilty just to get out (usually with a sentence of time served). It’s a repulsive practice, and last week, in a case that could have national implications for bail reform, a Federal District Court judge in Houston ruled that it was also unconstitutional.

In a 193-page ruling that followed a lengthy trial, the judge, Lee Rosenthal, said that money bail should be used for people charged with misdemeanors 'only in the narrowest of cases,' and even then only when there are strong safeguards in place to ensure that defendants receive due process before being locked up.

Harris County, which includes Houston and has the third-largest jail system in the country, fails on both counts, Judge Rosenthal said. Judges there require defendants to post bail, regardless of ability to pay, likelihood that they won’t return to court or how minor the charges are.

As a result, poor people charged with a misdemeanor end up stuck behind bars, while people with money who are charged with the same offense walk free.

The county’s lawyer defended this policy by arguing that poor defendants — who are disproportionately black and Latino — stay in jail not because they can’t buy their way out but because they 'want' to be there, especially 'if it’s a cold week.' Judge Rosenthal called this despicable claim 'uncomfortably reminiscent of the historical argument that used to be made that people enjoyed slavery.'

The real explanation is straightforward: As cash bail has fueled a politically influential, multibillion-dollar industry, courts are relying on it more, and people who can’t afford it are getting locked up at ever greater rates. Judge Rosenthal noted that only two decades ago, less than one-third of people in Texas jails were awaiting trial; today, it’s three-quarters. Forty percent of all misdemeanor defendants in Texas are locked up until their cases are resolved, at a huge cost to the state, and most because they can’t afford bail. ...

The ruling in the Harris County case is temporary, but its broader significance lies in the slew of factual findings Judge Rosenthal made and the legal conclusions she reached. Her careful reasoning could transform the growing debate over bail reform nationwide, where an estimated 450,000 people are held in pretrial detention on a given day.

Whether people, as viewed by some police and some local judges, are unconvicted criminals walking, driving, holding pro-civil liberties views and voicing these views, neither "police power nor judicial discretion are boundless," as noted by Judge Rosenthal, (p. 188).

Fight Against Republican Voter Obstruction Continues

Fighting Republican efforts to "to disenfranchise voters likely to vote for the political party that does not control the state government," (Richard Posner, Frank v. Walker).

Since 2011 Wisconsin Republicans have engineered mandatory photo voter ID and dozens of other election laws to obstruct as many non-Republican voters as possible.

This is an imperfect method of voter obstruction, but one which demonstrably is used to suppress the total number of voters likely to cast non-Republican votes.

Voting rights advocates are pursuing many actions against Republican voter obstruction laws enacted across the country by Republican-led states to achieve desired electoral outcomes for a favored political party, the Republican Party.

One action pursued by voting rights workers is in the federal court system, in which voting rights attorneys make legal claims under the Fourteenth Amendment and Section Two of the Voting Rights Act.

North Carolina

On June 21 in North Carolina, a federal judicial panel in the Court of Appeals for the Fourth Circuit, heard oral argument in North Carolina State Conference of the NAACP; Emanuel Baptist Church; Covenant Presbyterian Chruch; Barbee Chapel Missionary Baptist Church, Inc.; Rosanell Eaton; Armentia Eaton; Carolyn Coleman; Jocelyn Ferguson-Kelly; Faith Jackson; Mary Perry; and Maria Teresa Unger Palmer v. Patrick Lloyd McCrory, et al (2016 U.S. Dist. LEXIS 55712).

The voting rights plaintiffs challenge North Carolina's Republican-enacted voter suppression law, North Carolina House Bill 589 (2013), a comprehensive voter obstruction effort composed of many of the voter obstruction initiatives used in Wisconsin, Texas and other Republican-led states.

The North Carolina case is fast-tracked.

Gov. McCrory is an anti-voting rights Republican governor working to stop minority and college-aged voters from voting in an effort to consolidate Republican political control of North Carolina.

Voting rights advocates are watching North Carolina State Conference of the NAACP v.
Patrick Lloyd McCrory to gauge the federal courts' inclination to uphold Fourteenth Amendment claims of liberty and Due Process against incursions by Republican-led states.

North Carolina has a sordid and violent racist history of lynchings, beatings, Jim Crow laws and other liberty-destroying practices aimed at black citizens which leave minority populations particularly vulnerable to voter obstruction efforts.

Now, Latinos and college-aged voters join blacks in being targeted for exclusion from voting by Republican voter obstruction laws in North Carolina.

Anna Baldwin, an attorney with the Voting Section, Civil Rights Division of the U.S. Dept of Justice, argued on June 21 the "cumulative" consequence of numerous North Carolina Republican voter obstruction provisions has both the intent and effect of obstruction of minority and college-aged voters in North Carolina.

Other voting rights attorneys arguing the case, (16-1468), before the federal panel include Penda Hair and Allison Riggs who spoke to the discriminatory intent and effect of North Carolina's voter obstruction law.

Three voting rights cases were ordered consolidated for trial in 2015: North Carolina State Conference of the NAACP v. McCrory; League of Women Voters v. North Carolina and United States of America v. North Carolina.

Earlier this year Republican U.S. District Judge Thomas Schroeder allowed the North Carolina obstruction laws to take effect.

The federal panel hearing the case is composed of federal judges: Diana Gribbon Motz, James A. Wynn Jr., and Henry F. Floyd.

Wisconsin cases before the federal courts are One Wisconsin Institute v. Nichol (U.S. District Court of the Western District of Wisconsin (Case 15-cv-324)) and Frank v. Walker.

As with North Carolina, Wisconsin Republicans are hostile to minority and college-aged citizens who vote against Republicans.

Marriage Equality Wins at Supreme Court

"They ask for equal dignity in the eyes of the law."
—Justice Anthony M. Kennedy

Who told Gov. Scott Walker he knows enough about the Fourteenth Amendment to the United States Constitution to offer an opinion on the marriage equality decision, Obergefell v. Hodges?

God?

Maybe, but Walker is emitting nonsense for the lowest of the low-low-information voters who congregate at Republican functions and vote in Republican primaries.

Walker said the Supreme Court in Obergefell v. Hodges is making a "grave mistake" (Spicuzza, Marley and Vielmetti of the Milwaukee Journal-Sentinel) (Jessie Opoien, The Capital Times), omitting his reasoning.

One wishes a reporter could ask, 'Hey, Gov, can you more specific on the Equal Protection Clause and the Due Process Clause in Fourteenth Amendment and how they apply to Obergefell v. Hodges, this is making history?'

No big champion nor curious student of the Equal Protection Clause and the Due Process Clause is Scott Walker. Fortunately, for American liberty, Justice Anthony M. Kennedy is:

Justice Kennedy writing for the majority (5-4) in Obergefell notes: "III - Under the Due Process Clause of the Fourteenth Amendment, no State shall 'deprive any person of life, liberty, or property, without due process of law.'  The fundamental liberties protected by this Clause include most of the rights enumerated in the Bill of Rights. In addition these liberties extend to certain personal choices central to individual dignity and autonomy, including intimate choices that define personal identity and beliefs."

The identification and protection of fundamental rights is an enduring part of the judicial duty to interpret the Constitution. That responsibility, however, 'has not been reduced to any formula.' Rather, it requires courts to exercise reasoned judgment in identifying interests of the person so fundamental that the State must accord them its respect. (Case citations omitted)" (p.10) ...

No union is more profound than marriage, for it embodies the highest ideals of love, fidelity, devotion, sacrifice, and family.  In forming a marital union, two people become something greater than once they were. As some of the petitioners in these cases demonstrate, marriage embodies a love that may endure even past death. It would misunderstand these men and women to say they disrespect the idea of marriage. Their plea is that they do respect it, respect it so deeply that they seek to find its fulfillment for themselves. Their hope is not to be condemned to live in loneliness, excluded from one of civilization’s oldest institutions. They ask for equal dignity in the eyes of the law. The Constitution grants them that right.
The judgment of the Court of Appeals for the Sixth Circuit is reversed.
It is so ordered. (p.28)

Walker should look to his betters for guidance on the Court and to Wisconsin's congressional delegation:

U.S. Rep. Mark Pocan of Madison, who has been in a same-sex marriage for years, said, "Today, the Supreme Court has reaffirmed what a majority of Americans already know: all couples should have the right to marry, regardless of who they love. This a historic step forward toward fulfilling the promise of equality for all Americans."

And U.S. Sen. Tammy Baldwin of Madison, who is also gay, said, "Love is love, family is family, and discriminating against anyone's love, against anyone's family, is simply wrong. America can proudly say that discrimination doesn't just violate our values — it violates our Constitution. And now we can proudly say that marriage equality will be the law of the land." (Spicuzza, Marley and Vielmetti of the Milwaukee Journal-Sentinel)

Happiness - from the ACLU

It would be amusing to follow Walker's reasoning regarding the "grave" mistake the Court made. Can you feel your most intimate relationship falling apart under the crushing weight of gay people marrying

Better to revisit Judge Richard Posner's (United States Court of Appeals for the Seventh Circuit) opinion last September affirming U.S. District Judge Barbara Crabb's June 2014 opinion and order in Wolf v. Scott Walker striking down one of Walker's many forays into foolishness. (Mal Contends)

Today's lede editorial in the New York Times inspires. See also SCOTUSBlog, The Atlantic, Slate, and the New York Times as celebrations continue across the country.

The President Speaks on the Supreme Court’s Decision on Marriage Equality (June 26, 2015)

Justices' Remarks on Same-Sex Marriage Are Foolish and Ahistorical

American University students at Court, part
of #SCOTUSmarriage! (Freedom to Marry)

Update II: See Hiltzik, Same-sex marriage: Supreme Court Justices don't know much about history.

Update: See Judge Richard Posner's opinion: on "Mindless Tradition," and "Bigotry" that struck down Wisconsin and Indiana's same sex marriage bans.
 ---
"This definition [of traditional marriage] has been with us for millennia," [Justice Anthony Kennedy] said. "And it’s very difficult for the court to say, 'Oh, well, we know better.'" (Barnes, Barbash, Washington Post) (Baker, New York Times)

The NYT's Baker notes that several justices echoed Kennedy's expressed concerns in oral argument of Obergefell v. Hodge (Question 1, Oral transcript).

What is troubling is that none of the four statist justices—Scalia, Alito, Thomas and Roberts—expected to rule in favor of states' power to discriminate against individuals' right to simple equality in marriage have a subtle understanding of history on the matter. Thomas was silent during orals, but has demonstrated his abiding hostility towards minorities.

Marriage has changed through history, and across societies. Eighteen counties today have approved the freedom of individuals to marry. (Freedom to Marry) Criminalization of gay marriage "includes most Muslim-majority countries and much of sub-Saharan Africa," (Fisher, Washington Post) and is a mark of authoritarian and totalitarian states.

In the United States "Marriage today is not what it was under the common law tradition, under the civil law tradition. Marriage was a relationship of a dominant male to a subordinate female. That ended as a result of this Court's decision in 1982 when Louisiana's Head and Master Rule was struck down. And no State was allowed to have such a -- such a marriage anymore.  Would that be a choice that a State should be allowed to have?" chided Justice Ginsburg. (pp. 70,71)

In the Dark Ages and Nazi Germany the state sought to abolish gays, citing the unclean nature of gays and lack of usefulness to the state:

"On April 4, 1938, the Gestapo issued a directive indicating that men convicted of homosexuality could be incarcerated in concentration camps. Between 1933 and 1945 the police arrested an estimated 100,000 men as homosexuals. Most of the 50,000 men sentenced by the courts spent time in regular prisons, and between 5,000 and 15,000 were interned in concentration camps. ... The Nazis interned some homosexuals in concentration camps immediately after the seizure of power in January 1933. Those interned came from all areas of German society, and often had only the cause of their imprisonment in common. Some homosexuals were interned under other categories by mistake, and the Nazis purposefully miscategorized some political prisoners as homosexuals. Prisoners marked by pink triangles to signify homosexuality were treated harshly in the camps. According to many survivor accounts, homosexuals were among the most abused groups in the camps." (United States Holocaust Memorial Museum)

As the Dark Ages and Nazi Germany present extreme examples of animus and ignorance, one wonders if those justices foolishly using the universe of all societies through millennia as a justification for not protecting the rights of minorities mean to exclude these nonsensical and obscene states. How about Russia today?

Norman Cohn wrote of the totalitarian phenomenon as "the urge to purify the world through the annihilation of some category of human beings imagined as agents of corruption and incarnations of evil."

When Kennedy asked, "well, we know better," the answer is clear: 'Yes, we do.' Well, most of us do.

Kennedy's confusion is apparent as he is expected to rule in June for the right of Americans to marry because there is no rational basis for the state to deprive Americans from marrying another of the same sex. (Denniston, SCOTUSBlog)

There is only nonsensical hostility and injurious treatment.

Why Kennedy finds this difficult for the Court to state is mystifying.

Detecting Wrongful Prosecutions

During the Bush-Cheney years Karl Rove turned the DoJ's US attorneys into a political hit squad, and human rights attorney Scott Horton and others at Harper's chronicled some of the worst instances of wrongful prosecutions amid the purging of US attorneys refusing to go along. (Taylor, McClathchy Newspapers; Horton, Harper's Magazine)

Horton used to conduct an annual seminar (after the break-up of the Soviet Union) for the State Department entitled "How to Spot a Political Prosecution" in a foreign land (Horton, Harper's Magazine).

Political prosecutions in former totalitarian societies of the USSR bear resemblances to malicious and wrongful prosecutions domestically, and as Horton noted elsewhere, prosecutions by Rove and US attorneys whose victims include Don Siegelman, Keith Roberts, and Georgia Thompson lack any semblance of public integrity and the rule of law.

Horton points out some of the elements that should be examined to determine if a political prosecution has been inflicted:

• Nature of the Charges
• Timing and Circumstances of Criminal Investigations and Charges
• Circumstances of Investigation; Arrest and Detention; Media Dealings
• Conduct of the Preliminary Investigation
• Conduct of Trial
• Interview of Prosecutors and Defense Counsel
• State Secrecy
• Parallel Public Campaigns
• Media Coverage

Writes Horton, "... you should be prepared to question the motives and conduct of the prosecutor. Is the prosecutor investigating and acting on a crime, or is the prosecutor 'out to get' an individual? The latter case is per se abusive. When the prosecutor is 'out to get' an individual as part of a political agenda, the act of prosecution is an assault on democratic institutions."

Horton cites Robert Jackson—whose wisdom and humanity informs jurisprudence today—but not in Iron County Wisconsin.

An interview with Iron County District Attorney Martin Lipske would rightfully ask Lipske to explain the volatile, arbitrary and disparate sentences Lipske sought for similar (and highly dubious) convictions because Lipske's conduct would not withstand Constitutional scrutiny or an objective and thorough ethics investigation.

Moreover, many of Lipske's prosecutions bear the hallmarks of wrongful/political prosecutions that one might expect of former totalitarian countries with no tradition of Constitutional safeguards against the state.

But this is Iron County, so I guess anything goes.

Maybe. Watch this space.