November 04, 2009
Why Birthers, Too, Should Always Wear Their Motorcycle Helmets
As long as I’m agitating crazies, I might as well deliver the bad news to the birthers, the wild-eyed bunch seek to oust the President because they claim he is a foreign-born fake citizen. They’ve claimed, based on evidence that no legitimate news organization has found convincing, that Barack Obama was born in Kenya. This despite his Hawaiian birth certificate and the coinciding announcements in the local newspapers. (Obama apparently conspired to take over the White House at a very, very early age.)
The birthers, despite their ferocious anti-Obama tenacity, have failed in most courts to establish standing. It’s not enough to be simply irritated by great events. The Supreme Court has indicated that one must show actual, personal damage to gain a foothold in court.
A judge in southern California said last week, however, said that, well, maybe there was a convincing argument for standing. But U.S. District Judge David O. Carter said it didn’t much matter. Even if the birthers could prove their very tenuous case, Judge Carter said that under the restraints required by the separation of powers mandate in the U.S. Constitution, a federal judge was not about to “overthrow a sitting president.”
In order for Plaintiffs’ alleged injury to be fully addressed, Plaintiffs would have the Court intervene, upheave the results of a national election, declare the President illegitimate, shut down the functioning of the government of the United States, and leave this country defenseless.
Plaintiffs make it clear from their briefing that they believe that any order issued by a president who does not satisfy the natural-born citizen clause is unconstitutional. Therefore, in order to cure Plaintiffs’ perceived injury, the Court would need to wade deep into the waters of the President’s official duties – in fact, it would have to declare that the President could no longer perform any official duties. The separation of powers concerns implicated by this request are grave.
The founders of the Constitution created impeachment to allow an orderly process of transition and succession during which the country can continue to function. Plaintiffs’ request, asking this Court to sweep away the votes of over sixty-nine million Americans with the stroke of a pen and order a new election during which the country would be in a state of turmoil, ignores the Constitution’s processes and separation of powers that were developed by the founders.
Next time they ride into court with the reckless and outlandish notion of overthrowing an elected president, birthers should their don protective headgear.
October 24, 2009
Another Reason To Wear Motorcycle Helmets
Biker blogger Bruce Arnold, purveyor of the peculiar logic that motorcycle helmets are more of a danger than riding bare headed (crazy but not so crazy that it kept the Florida legislature from tossing the state’s mandatory helmet law), has inadvertently proven quite that brains need protecting.
Arnold, of the Bikers Forum, has veered out of the mainstream to ride with the 9-11 “truthers,” who cling to the world’s biggest conspiracy theory. Maybe, it was one too many spills without a helmet.
I now have reason to believe that "9/11" may have been an inside job. I have a good idea as to what might have happened, and recognize that our government's official story defies both physics and logic. I also have a good idea as to who might have been behind the attacks, and what their motives might have been for staging them. What I do NOT have with any certainty, however, is the ACTUAL TRUTH about what happened to our nation on 11 September 2001.
Looking for a responsible adult to support the truther movement, Arnold brings in the former attorney general of New Jersey and a member of the 9-11 commission.
Commission Report has been exposed as almost entirely untrue by John Farmer,
the Dean of Rutgers School of Law--Newark who served as Senior Counsel to the
Commission. In short, THEY LIED. As that is now public knowledge, it is time
for Americans to ask some tough questions, and for once in our history, insist
on the real answers. Specifically, I hereby call on all who read this to
contact their United States Senators and Representatives and DEMAND a new,
impartial and independent investigation to uncover for once and for all the
Truth about 9/11.
The 9/11 Commission Report has been exposed as almost entirely untrue by John Farmer, the Dean of Rutgers School of Law--Newark who served as Senior Counsel to the Commission. In short, THEY LIED. As that is now public knowledge, it is time for Americans to ask some tough questions, and for once in our history, insist on the real answers. Specifically, I hereby call on all who read this to contact their United States Senators and Representatives and DEMAND a new, impartial and independent investigation to uncover for once and for all the Truth about 9/11.
Unhappily for Arnold, what Farmer actually maintains is that the upper reaches of the government and military were caught utterly unprepared by the attacks. That our federal government reaction was one of incompetence. And tried to hide the incompetence.
In an Oct. 16 interview with Newsweek, Farmer, now dean of Rutgers Law School, definitely did not endorse the truther’s explanation for 9-11. Asked about the conspiracy theories, Farmer said:
Well, it's just simply not true. I understand some of the impetus for these conspiracy theories because when the government hasn't told the truth about something, and that comes to light, then people's imaginations are sort of free to run wild.
Farmer explained the 9-11 reaction:
What happened on 9/11 was simply a trailing consequence of all the malfunctions of government that had occurred in the prior 10 years. In virtually every department, there was a growing awareness of the threat of al Qaeda and Osama bin Laden through the '90s. What people who were engaged with the outside threat encountered was incredible inertia at the bureaucratic level that really prevented the government from effectively reconfiguring itself against the threat.
The fundamental ineffectiveness of the government. And when I saw the same kind of pattern emerge in response to Katrina, it really brought it home for me. Katrina was not a surprise. Yet you still had a very similar dynamic play out with Katrina, where you had the top levels of government talking to themselves and estranged from people on the ground reacting to it.
The lesson here. Wear your helmet. Keep your brain from being scrambled.
October 06, 2009
Blood Money Translates Into Big Money
The strange entanglement of a non-profit blood bank into the high stakes influence game exposed by the FBI investigation into the Broward School Board seems less mysterious after examining the 909 Form the IRS required by the IRS that was filed by Community Blood Centers of South Florida.
October 01, 2009
Big Money And ESPN Warps High School Sports
Wondering about the larger implications of ESPN’s incursion into high school sports – the St. Thomas Aquinas prep school in Fort Lauderdale will be making its second appearance on national television Friday -- Sociologist and social critic D. Stanley Eitzen of Colorado State sent me an e-mail with far more information than I could fold into a column. Eitzen has written extensively on the sociology of modern sports. His books include Fair and Foul: Beyond the Myths And Paradoxes of Sport, Sport In Contemporary Socity and a collaboration with George H. Sage, Sociology Of North American Sport.
There are at least 5 indicators that high
school sport is moving in the
wrong direction (i.e., away from its place in education) and toward the
big-time college model.
1. Some schools are resembling sports programs in big-time universities by selling naming rights to stadiums and arenas, hiring coaches for salaries
far exceeding those of teachers, selling personal seat licenses, spending huge amounts on their football and basketball programs (both male, by the way), and spending in an "arms race" on facilities.
2. The existence of fraudulent "prep schools" that exist basically to inflate transcripts of those who are marginal students but excellent athletes.
3. The combined effect of increased exposure and commercialization. Instead of competing against lleague rivals, there is, as you note, competition nationally. Some schools participate in national basketball tournaments in Hawaii, Florida, Las Vegas, and elsewhere far from home. For example, Oak Hill Academy in 2006 traveled 13,600 miles for basketball games. These events are sponsored by corporations. Media attention (USA Today, SportsChannel, Fox Sports Net, and ESPN) is national in scope. Nike, Reebok, and Adidas pay some of the top coaches for helping steer their athletes to colleges that are "Nike schools" or "Reebok" schools.
4. Top athletes are given very special treatment in attention, grades, recruiting, being "redshirted," etc.
5. The intense recruitment by colleges of these elite high school athletes (e.g., being offered a college scholarship while an 8th grader), has detrimental effects. It inflates egos, and gets in the way of their education. It also tends tto make them cynical about education because of the sometimes sleazy aspects of recruiting. Most significant, these athletes are on the market. As such, they ultimately will be purchased by a university athletic department and they will be treated as commodities.
September 22, 2009
Ex-Mayor Calls Expenditure Of Public Funds On Lobbyists "Borderline Immoral"
My column on South Florida’s inexplicable penchant for shoveling public money into the pockets of lobbyists struck a chord with former Miami Mayor Xavier Suarez. Mayor Suarez writes:
You are 100% right in your column of today. In my eight year tenure, the best lobbyists we had were our elected officials. (We even used Paula Hawkins - god bless her.)
In DC, Miami maintained a presence at minimal cost through an affiliation with the U.S. Conference of Mayors. The conference prepared excellent testimony for me when I appeared before Congressional committees and also provided logistical support for my visits to the Hill.
As for dealing the executive branch, the office of mayor in Miami had so much inherent clout and so many local figures were so well placed in Washington (Lula Rodriguez, Janet Reno, etc. later followed by my own Jeff Watson) that a lobbyist was simply a facilitator. When our lobbyists failed even in that task, during one of my Tallahassee visits, I refused to vote to renew the lobbying contract. But knowing I would be outvoted by the commission, I cut the contract in half -- from $150,000 a year to $75,000.
And the only reason I even needed logistical support was that at a $5,000 annual salary, I did not have the time to learn who the key legislators were.
To give you an idea of Miami's inherent clout, I was called by both HUD secretaries on the very day they were appointed: Jack Kemp and Henry Cisneros. (They were both friends and both probably wanted to be president, but the fact remains that they were a phone call away - something no lobbyist could claim.)
It is borderline immoral to pay a private party government funds to convince a government official to do what they were elected to do in the first place.
September 21, 2009
The New York Times Looks At The Marlins Stadium Deal. And It Looks Like Folly
Here in the heat of the argument, where old feuds and clashing personalities have obscured the debate over the Marlins’ baseball stadium deal, the assessment of an objective outsider can be illuminating.
Monday’s New York Times looks at Miami’s stadium deal. And sums it up this way:
Miami and Miami-Dade County have agreed to cover three-quarters of the projected $645 million cost to build the Marlins a home with a retractable roof and four huge parking garages. In return, the city and the county will receive no new revenue from the park, and the team can keep all the money from the 50 luxury suites, concessions and advertising, as well as from naming rights, which alone could generate more than $100 million.
Times writer Ken Belson wrote:
Such generous terms were not uncommon during good times, before city and county officials faced yawning budget gaps, potential layoffs and cuts in social services. Yet they forged ahead, anyway, largely dismissing voter opposition and the lessons learned elsewhere that new stadiums sometimes fail to deliver the economic punch promised in forecasts and that the public financing for them can handcuff future generations.
The deal was a fresh reminder that even during a recession, sports hold sway over communities regardless of the potential costs.
The Times story, comparing Miami’s coming expenditures with other contemporary stadium deals, does not conclude that we’ve gotten much of a bargain. The story’s at
September 08, 2009
The Red Light Camera Debate Endures
Dick Sinnott of Fort Pierce opposes red light cameras. But not for reasons harbored by those who worry about the cameras as an Orwellian government intrusion. (For the record, I don’t agree with Sinnott’s claim that a preponderance of traffic safety studies found no advantage to red light cameras. My research found quite the opposite, but here’s his letter, unfettered by my views, and without what I consider convincing evidence in support of cameras. Sinnott writes:
I read your piece in this morning's Scripps St. Lucie Tribune. I agree with you that these systems are not so much a question of privacy or constitutional rights. Though I have heard many people take that position, I don't see it so much.
That said, I oppose the systems for the simple reason that they are a scam. They represent an unfair tax for which the person being taxed receives nothing in return. They offer a specious argument regarding safety that is not persuasive in the least, considering the studies that have been done on these things.
In case you didn't know, it seems that Australia was actually the first to employ these systems in 1984. By 1995 the government had studied the results and discovered that while there may indeed be a reduction in right-angle crashes, there is an increase in rear-end collisions as drivers react with panic stops.
Studies in Canada, Virginia, Washington DC, Charlotte NC and most recently last year at the USF in Tampa all reach the same basic conclusion. The safety improvement is illusory, and the chances of a net loss of safety are quite good.
In May a national poll found 69 percent of Americans felt thus and so? That's hardly compelling. In 2003 the vast majority of Americans felt that Iraq was in possession of WMD and a threat to the national security. Back in the 1400's the majority of the populace thought that the world was flat. Americans are easily misled.
Judge Carney Responds To Criticism
Broward Circuit Judge Robert Carney, a former assistant state attorney who prosecuted Anthony Caravella in the 1983 trial that brought the defendant a life sentence, responded to my column critical of the process that convicted Caravella. DNA testing revealed, after Caravella had spent 26 years in prison, that the mentally deficient 15-year-old charged with murder in 1982, was the innocent.
Judge Carney writes:
I read your column this morning regarding the recent developments in the Anthony Caravella case. I anticipate that there will be further commentary, and I thought it important to take a moment to provide you with another perspective in the hope that this might influence you in further commentary.
Capital cases are different. To fairly criticize the prosecution of any capital case it is important to understand exactly what makes the trial of a capital case different from other criminal trials.
First, in capital cases the decision to charge is taken away from the prosecutor by our Constitution. A capital case can only be initiated by Grand Jury indictment. A capital case is the only criminal case that requires an indictment. This is in sharp contrast to other criminal cases where the prosecutor is the one who makes the filing decision. In a capital case the prosecutor does not make the filing decision. The prosecutor presents evidence to the Grand Jury, but the filing decision belongs exclusively to the Grand Jury.
Nor does the prosecutor even recommend the charge. That is not the prosecutor’s function. A prosecutor only presents evidence and instructs on the law. The decision on whether or what to charge lies solely with the Grand Jury.
The trial itself has some sharp differences as well. With the exception of capital cases, all criminal trials in Florida are held in front of a jury of six. In capital cases the number of jurors is twelve. This doubles the number of people who each must find proof beyond and to the exclusion of every reasonable doubt before the jury can return a verdict of guilty. Even the number of challenges that can be made without giving a reason during jury selection is increased from 6 to 10.
The attorneys on both sides of a capital case tend to be more experienced as do the police detectives who handle capital cases. Florida now requires special training and qualifications for an attorney to be able to handle a capital case. No other criminal case requires certification. Even judges are now required to have special training and certification.
Additionally, judges must have minimum experience requirements before handling capital cases.
Ordinarily, in Florida, a jury is not involved in any aspect of sentencing. In capital cases, however, unless the death penalty is waived by the state, the jury makes recommendations to the judge. If the recommendation is life, the court, for the most part, is bound by that recommendation. The judge alone imposes sentence, either life in prison or death.
The conduct of the prosecutor is monitored by the judge at all stages of the proceedings. If the prosecutor steps out of bounds at any point, this is actionable by the trial judge and also fully reviewable by a separate appellate court. A trial judge always has the power to dismiss a case entirely or order a new trial if there is any prosecutorial misconduct.
After trial the review does not stop. If the prosecutor or the trial judge makes errors, this is reviewable by an appellate court or, if death is imposed, by the Supreme Court. Even if there are no errors by either the prosecutor or the judge, but the level of performance of the defense attorney falls short, this, too, is reviewable by the appellate court - all to insure the fairness of the proceedings against the defendant.
It is important to understand that because so much is at stake in capital cases, these extra safeguards are in place to protect the rights of the accused and minimize as much as humanly possible a mistaken conviction. The filing decision is taken away from the prosecutor specifically to limit any possible abuses in the exercise of the powers of that office. The number of jurors is doubled to lessen the chance of mistake. Even the judge’s powers are restricted if death is sought and a jury is permitted to encroach on sentencing decisions which is not permissible in any other criminal case.
Yet in spite of these safeguards, the system is not perfect and, on occasion, there is a bad result. When it happens it is a stark reminder to all of us of the gravity of what we do. If an innocent person serves time for a crime he or she did not commit, this is a terrible thing and is felt deeply by all who are involved in the process.
There is no question, the prosecutor plays a key role in any murder case, but he or she is not the only player. It is the Grand Jury that decides whether charges should be brought and what charge is appropriate. It is the trial judge who oversees the proceedings and imposes any sentence. It is the petite jury that makes the decision whether the defendant is guilty. It is the appellate court that reviews the actions of the prosecutor, the defense attorney, the jury, and the trial judge. And throughout this, the defendant has an experienced advocate, zealously challenging the state’s case and actions every step of the way.
There are, of course, others – police, medical examiners, forensic experts, witnesses, friends and family, and even the press to monitor the proceedings.
If the system fails and an innocent person is convicted, the focus should be on determining, with information known at the time, what could have been done differently, why it should have been done differently, and how doing it differently would have altered the result.
Our system is, as it should be, an evolving one. The Supreme Court mandates formal training for attorneys and judges. Professional organizations and educational programs provide prosecutors, defense attorneys, and judges additional education and training. The goal should be a constructive analysis to provide a step forward to further improve and refine our system of justice.
Robert B. Carney
 The Supreme Court of Florida in 1990 directed the creation of a capital litigation course for judges. Attendance at this course became a prerequisite to handling capital cases by judges. The writer was one of several judges tasked with creating and teaching the course. The writer did so for six years.
September 05, 2009
How To Save Face And Save A Wrongful Conviction
Edward Blake, a pioneer in DNA forensic analysis, was seething on Friday. His renowned California lab, Forensic Science Associates, had obtained a genetic profile from the biological evidence of a brutal 1982 rape and murder in Miramar. The DNA did not match the man sent off to prison on a life sentence.
Prosecutor, Carolyn McCann, was making public statements that the Broward State Attorney was interested in righting the terrible injustice that sent Anthony Caravella to prison. She announced that she would have no objection to a supervised release of Caravella, while he waited the outcome of an appeal.
But her less public statements were not so high minded. On Thursday, McCann had fired off an e-mail to Blake with a long list of demands that made it clear that she was planning to attempt to undermine Blake’s credibility. He was outraged. He called her e-mail an “onerous, ridiculous concocted discovery demand.”
Blake fired off an e-mail to Broward Assistant Public Defender Diane Cuddihy. “It is unfortunate
that MS. McCann views her prosecutorial duties to "seek the truth" by employing her laboratory bureaucrats to concoct preposterous demands rather than seeking legitimate scientific peer review of our work. I hope that this style of prosecutorial corruption is not typical of your jurisdiction.”
Blake’s extraction of a DNA profile from the biological evidence not only undermined yet another shoddy conviction by the Broward State Attorney’s Office, but the lab work raised questions about the Broward Sheriff’s own forensic lab. In 2001, the sheriff’s lab looked at the DNA and, mysteriously, found nothing. And Anthony Caravella stayed in prison another eight years.
Going after Blake’s credibility probably has more to do with salvaging the reputation of the Broward State Attorney and the Broward Sheriff’s lab than finding justice for that 1983 murder.
It’s not likely to work. A few weeks ago, in a similar case in Ohio, in which the prosecution attempted to undermine his credibility, U.S. District Judge Rebecca Pallmeyer ruled that Blake’s credentials "appear to be unimpeachable.”
Blake considerable fame has to do with the high profile DNA cases in which wrongfully convicted men were freed from prison, many after serving long prison sentences. Including work with the Innocence Project. But he has performed more than twice as much work over the years for prosecutors, confirming the forensic evidence that points to guilt. And his objectivity does not hinge who which sides pays him. Consider this case that bubbled up again in an appeals court in May. Kevin Cooper, a California killer who escaped from prison back in 1982, broke into a house and killed a man and wife and two children, had hired Blake to clear his name. Blake found, instead, damning DNA evidence. Cooper’s appeal on his murder conviction was denied.
But Blake has long been the bane of incompetent police labs. Attacking his credentials to protect shoddy and unethical work has been a common tactic. But it didn’t work in Illinois or Virginia or other jurisdictions that tolerated bad science. And it won’t work in Broward.
Click here for a list of Blake's cases: Download Blake's History
Click here for his resume: Download Blake's Resume
Click here for the McCann's e-mail to Blake:Download McCann E-Mail
Click here for the Blake e-mail to Cuddihy: Download Blake e-mail
Click here for the DNA report that exonerated Caravella: Download DNA report
By the way, it was Paula McMahon of the Sun-Sentinel who kept Caravella's story alive, even after the botched BSO lab failed to find a genetic profile back in 2001.
August 28, 2009
ACLU Comes To The Rescue Of The Florida DOC
I’ve been wondering whether the Zandbergen-Hart housing study, introduced by the ACLU in its legal challenge against Miami-Dade County’s sex offender residency restrictions, might be more compelling if the lawsuit had been directed at the even more draconian city ordinances. The county ordinance establishes a 2,500 buffer around schools but most of the 24 cities with residency restrictions encircle schools, kindergartens, day cares even school bus stops.
The county ordinance greatly restricts the housing opportunities, the study shows, but cities like Miami and Miami Beach has virtually eliminated all affordable housing opportunities. The cities have essentially banished sex offenders – a constitutional no-no.
The Zandbergen –Hart study would provide a stunning defense exhibit for the Florida Department of Corrections, which is being sued by the city of Miami for dumping sex offender probationers into the Julia Tuttle Causeway homeless camp. The study shows that the city, by eliminating all potential housing within its own limits, has made it own bed.
But Valerie Jonas, on leave from her job as a Miami-Dade public defender, thinks I missed something in my unlawyerly musings. She writes:
“I do think you're missing something. You suggest that only those bans which eliminate all housing within the jurisdiction of the banning authority are clearly liable.
“But here's the legal and factual scenarios combined:
(1) Most (all but
4 I think) of the
municipalities passed their ordinances before the county passed its ordinance.
(2) The county could have but did not preempt the municipal ordinances under the home rule charter.
(3) When the
county passed its
ordinance, it knew and intended that, combined with the municipal ordinances, there would remain no place in the county for sex offenders to reside. [Jonas offers up some of the some of very telling county commissioner statements at the Nov. 15, 2005 meeting at which the ordinance was passed.]
(4) Combining the
the Zandbergen report and the FDLE website, there are now many more homeless sex offenders in the county than there are affordable legal residences available for them to live in, which was precisely the effect the county intended.
It would be
incredibly burdensome and unjust to require sex offenders to bring lawsuits
against all 24 individual municipalities, particularly where, as here, the
county had the intent to and effectually
did create a county-wide ban. Does a sex offender even have a right to affordable available housing in Pinecrest or Bal Harbor? A single lawsuit against the county makes more sense, because the county effectually created the county-wide ban, and is best situated to eliminate it through the simple expedient of preemption.” [The ACLU contends that the county unlawfully preempted the state’s less draconian 1,000-feet residency restrictions.]