CALIFORNIA YANKEE

Kentucky Supreme Court Upholds Lethal Injection

Kentucky Supreme Court upholds execution by lethal injection.

Two Kentucky Death Row inmates challenged the state's method of execution in 2004, saying the drug formula used amounts to cruel and unusual punishment because inmates feel pain during the process.

Kentucky, like many states, uses a four-drug cocktail that includes Valium, which is designed to relax the inmate, sodium thiopental, which is designed to render the inmate unconscious, and pancuronium bromide, also known as Pavulon, which paralyzes the inmate. The final drug is potassium chloride, which causes a heart attack.

Two other Kentucky Death Row inmates are challenging Kentucky's method of lethal injection in federal court. That case is pending.

Nudity Illegal For Men Only

A California judge threw out a misdemeanor indecent exposure charge against a woman accused of disrobing in front of a 14-year-old boy, ruling the state law only applies to men:

Superior Court Judge Robert W. Armstrong said earlier in the week that the law only mentions someone who "exposes his person."

"It's gender specific," Armstrong said.

The prosecutor will appeal the decision because another section of state law says that "words used in the masculine gender include the feminine and neuter."

This story shows how much things have changed since I was a 14-year old.

The woman complained that the 14-year-old was making too much noise while playing basketball. She went out on her sundeck. The woman and the boy looked at each other and she took her clothes off.
The boy ran inside and told his parents, who complained to the woman. She threatened to do it every time he played basketball, so they called the cops.

In my day, a 14-year old boy would be out there playing as much basketball as possible.

Terrorist Attorney Sentenced To 28 Months

Lynne Stewart, the radical New York civil rights attorney convicted in 2003 of aiding and abetting a terrorist conspiracy, has been sentenced to 28 months in prison.

Stewart and other defendants carried messages between her imprisoned client, Sheikh Omar Abdel-Rahman also known as the blind sheik, and senior members of an Egyptian-based terrorist organization, helping spread Abdel-Rahman's call to kill those who did not subscribe to his extremist interpretation of Islamic law.

The Sheik was imprisoned for plotting to blow up New York City landmarks.

Stewart should count her lucky stars, she could have been sentenced for up to 30 years in prison.

The judge should have thrown the book at Stewart. As the only U.S. lawyer to be indicted on terrorism charge, she is a disgrace to the legal profession and a danger to America.

The Times Blames Fitzgerald

A day after the Washington Post published its mea culpa about the farcical scandal in which the mainstream media falsely persecuted the administration for the alleged malicious outing of Valerie Plame, the New York Times questions the prosecutorial integrity of special counsel Fitzgerald:

Patrick J. Fitzgerald, the prosecutor, knew the identity of the leaker from his very first day in the special counsel’s chair, but kept the inquiry open for nearly two more years before indicting I. Lewis Libby Jr., Vice President Dick Cheney’s former chief of staff, on obstruction charges.

Now, the question of whether Mr. Fitzgerald properly exercised his prosecutorial discretion in continuing to pursue possible wrongdoing in the case has become the subject of rich debate on editorial pages and in legal and political circles.

Richard L. Armitage, the former deputy secretary of state, first told the authorities in October 2003 that he had been the primary source for the July 14, 2003, column by Robert D. Novak that identified Valerie Wilson as a C.I.A. operative and set off the leak investigation.

Mr. Fitzgerald’s decision to prolong the inquiry once he took over as special prosecutor in December 2003 had significant political and legal consequences. The inquiry seriously embarrassed and distracted the Bush White House for nearly two years and resulted in five felony charges against Mr. Libby, even as Mr. Fitzgerald decided not to charge Mr. Armitage or anyone else with crimes related to the leak itself.

Moreover, Mr. Fitzgerald’s effort to find out who besides Mr. Armitage had spoken to reporters provoked a fierce battle over whether reporters could withhold the identities of their sources from prosecutors and resulted in one reporter, Judith Miller, then of The New York Times, spending 85 days in jail before agreeing to testify to a grand jury.

Based upon the undisputed reports that special counsel Fitzgerald knew that Armitage was the source from the moment he was appointed, I can not imagine any reason why Fitzgerald continued this investigation imprisoning one reporter for 85 days and wreaking all kinds of unnecessary damage to other people's lives.

I'm not a prosecutor, but as a lawyer and a citizen I am deeply disappointed by his abuse of prosecutorial discretion. The public silence of Armitage and Colin Powell is also shameful. How could these men allow such an injustice.

Decision Nixing Terrorist Surveillance Program Appealed

Wasting little time, the Justice Department has appealed today's ruling on the Terrorist Surveillance Program and parties have also agreed to a stay of the injunction:

The Terrorist Surveillance Program is a critical tool that ensures we have in place an early warning system to detect and prevent a terrorist attack. In the ongoing conflict with al- Qaeda and its allies, the president has the primary duty under the Constitution to protect the American people. The Constitution gives the president the full authority necessary to carry out that solemn duty, and we believe the program is lawful and protects civil liberties. Because the Terrorist Surveillance Program is an essential tool for the intelligence community in the war on terror, the Department of Justice has appealed the District Court's order. The parties have also agreed to a stay of the injunction until the District Court can hear the Department's motion for a stay pending appeal.

Earlier today a federal judge ruled the government's Terrorist Surveillance Program is unconstitutional and ordered an immediate halt to it:

U.S. District Judge Anna Diggs Taylor in Detroit became the first judge to strike down the National Security Agency's program, which she says violates the rights to free speech and privacy as well as the separation of powers enshrined in the Constitution.

Judge Taylor is a Carter appointee. Her decision is one of the most blatantly political opinions I've read in some time. You can read it for yourself here [pdf file].

The decision is also artfully timed, in a political kind of way. It will be hard to get it reversed by November, but reversed it will be.

Supreme Court Stops Cross Removal

The Supreme Court issued a stay Monday to stop the removal of a large cross from San Diego city property on Mount Soledad.

In May, U.S. District Court Judge Gordon Thompson Jr., ordered San Diego to take down the 29-foot cross before Aug. 2 or pay daily fines of $5,000.

Judge Gordon Thompson declared the cross an unconstitutional endorsement of one religion over another.

The Mount Soledad cross was dedicated in 1954 as a memorial to Korean War veterans, and a private association maintains a veterans memorial on the land surrounding it.

Three Republican Congressmen – Duncan Hunter, Darrell Issa and recently elected Brian Bilbray – have introduced legislation which would preserve the cross by having the federal government take over the land and transfer it to the Defense Department.

Three cheers for the Supreme Court and Congressmen Hunter, Issa, and Bilbray for saving the Mt. Soledad Veterans Memorial.

Why I Oppose The Death Penalty

The Houston Chronicle reports that a dozen years after Texas executed Ruben M. Cantu, an investigation by the Chronicle suggests that Cantu was likely innocent:

Cantu's long-silent co-defendant, David Garza, just 15 when the two boys allegedly committed a murder-robbery together, has signed a sworn affidavit saying he allowed his friend to be falsely accused, though Cantu wasn't with him the night of the killing.

And the lone eyewitness, the man who survived the shooting, has recanted. He told the Chronicle he's sure that the person who shot him was not Cantu, but he felt pressured by police to identify the boy as the killer. Juan Moreno, an illegal immigrant at the time of the shooting, said his damning in-court identification was based on his fear of authorities and police interest in Cantu.

Cantu "was innocent. It was a case of an innocent person being killed," Moreno said.

According to the Chronicle, key players in Cantu's execution, including the judge, prosecutor, head juror and defense attorney, now acknowledge that his conviction seems to have been built on omissions and lies:

"We did the best we could with the information we had, but with a little extra work, a little extra effort, maybe we'd have gotten the right information," said Miriam Ward, forewoman of the jury that convicted Cantu. "The bottom line is, an innocent person was put to death for it. We all have our finger in that."

Sam D. Millsap Jr., the former Bexar County district attorney who made the decision to charge Cantu with capital murder, says he never should have sought the death penalty in a case based on the testimony of an eyewitness who identified Cantu only after police officers showed him Cantu's photo three separate times.

As the saying goes, it is better that a hundred guilty men should go free than, that one innocent man be convicted.

Separate Gay Districts?

The Associated Press reports that Gay activists in Spokane are planning to create a "Gay District," a neighborhood of gay-oriented homes, businesses and nightlife.

According to the AP, The idea for the district has roots in the theories of economist Richard Florida:

Florida, a Carnegie Mellon University professor, said members of the creative class consider recreation, culture and ethnic diversity, including a large population of gays, as central to where they live. Places like New York, Boston, San Francisco and Seattle have those qualities. Places like Spokane generally do not.

Even though they face little discrimination, gays stay under the radar in Spokane, said Aspen, a member of the Inland Northwest Business Alliance, an association of gay and gay-friendly businesses that is pushing the idea.

"Visibility equals freedom," Aspen said. "Invisibility we have dealt with all our life."

She predicted a gay district will exist within the next year or two.

Tom Reese, an economic development officer for Spokane, said city government is not exactly pushing the notion of a gay district, but they don't oppose it either.

"It is our desire to create an environment where diversity and different interests and lifestyles of all types can flourish," Reese said.

No public funds will be used to create the district, which is dependent on developers, Aspen said. No location has been announced.

While I know nothing about Washington State land use law, I do know something about land use law generally. I've never before heard of trying to "create" a district based on a sexual orientation. My initial gut reaction is that there would be serious constitutional issues to be faced by such any municipality trying to establish such a district.

At A Stitch in Haste, KipEsquire posts that such "districts" used to be called ghettos - black, and Jews before them, had it right -- the point should be to get out of the ghettoes, not to set up new ones. Well said!

Thanks to Wizbang's Kevin Aylward for the tip.

U.S. Court Won't Block Arizona Immigration Law

A federal appeals court has refused to block an Arizona law, approved by voters last year, that bars illegal immigrants from voting or seeking public assistance. According to Reuters, a two-judge panel of the U.S. Ninth Circuit Court of Appeals rejected a petition by the Mexican American Legal Defense and Education Fund to stop enforcement of the Arizona law, known as Proposition 200:

Proposition 200, approved by a majority of Arizona voters on Nov. 2, mandates that government workers check the immigration status of those applying for public assistance. Workers who do not comply could face a misdemeanor charge, punishable by jail time and a fine.

Under the measure, individuals also must prove citizenship when registering to vote and show proper identification when casting a ballot.

It's hard to imagine what could be wrong with requiring individuals to prove their citizenship when registering to vote and provide identification when voting. It is also appropriate to check whether those applying for public assistance are legally entitled to do so. If the Mexican American Legal Defense and Education Fund couldn't even convince the Ninth Circuit, commonly believed to be the most liberal appellate court in the country, the arguments against Arizona's Proposition 200 must be very weak indeed.

U.S. Supreme Court Declines Case Challenging Military Terror Trials

Bloomberg reports that the Supreme Court refused to review of the constitutionality of procedures for the military tribunals set up to try Guantanamo Bay detainees.

The justices made no comment in turning away arguments by Salim Ahmed Hamdan, who asked the court to prohibit military trials that don't adhere to the requirements of the Geneva Conventions. The Bush administration says the Geneva Conventions don't apply to its fight against bin Laden's al-Qaeda network.

The Court rejection of Hamdan's case means the D.C. Circuit Court of Appeals will consider the case first. The Circuit Court will hear the case on March 8.

Hamdan, was captured in Afghanistan in 2001 and is being held at Guantanamo Bay. The government accuses Hamdan of being a trained al-Qaeda terrorist who has delivered weapons and ammunition and served as bin Laden's bodyguard. In an affidavit filed with the court, Hamdan said he was captured while trying to flee Afghanistan and return with his family to Yemen.

Attorneys for Hamdan asked the Supreme Court to hear the case before the D.C. Circuit. Hamdan had won a challenge in U.S. District Court, and the Justice Department appealed to the D.C. Circuit.

The case is Salim Ahmed Hamdan v. U.S., docket 04-702.