Not quite so open

Excessive bail shall not be required, nor excessive fines imposed, nor cruel or unusual punishment inflicted. All courts shall be open, and every person for an injury done him in his lands, goods, person or reputation shall have remedy by due course of law.

-- Texas Constitution, Art. 1, Sec. 13

Apparently that provision doesn't apply whenever a criminal court overbooks itself and sets so many cases on the docket there aren't enough seats in the courtroom for all of the defendants.

Sit in any Harris County misdemeanor court at docket call and you will hear the bailiff tell you to leave the courtroom if you aren't on the docket. Well, I hate to break it to you, but the public has a right to be in that courtroom. It is, after all, the people's court (thanks, Judge Criss).

The problem isn't mom or dad or husband or wife or boyfriend or girlfriend being there to support their loved one. The problem is requiring defendants to continue showing up in court for multiple settings when there is no need for the defendant to be there.

If it's a so-called "non-issue" setting on a criminal case, the only person who's presence is required is the attorney. Nothing's going to happen. The prosecutor may make an offer. The defense attorney may make a counter-offer, but that's it. Maybe the defense attorney files a motion or two. No reason for the defendant to be in court for the ceremonial exchange of paper.

A defendant's presence is necessary on the initial arraignment setting. After that, there's no need for the defendant to be present until the case is set for trial or to enter a plea. Requiring their presence only clogs the courthouse and puts pressure on defendants to plead out their cases because of the inconvenience of coming to the courthouse.

Hey, kids, get out of my yard!

Back in 2004, D.C. police decided that Antoine Jones was a bad dude and needed watching. Employing a spy store full of surveillance tools, the police obtained a court order allowing them to install a GPS device on the Jeep that Mr. Jones routinely drove (the car was registered to his wife). The court told the police they had ten days to install the device within the District.

On the 11th day, in a parking lot in Maryland, the police attached the GPS device to Mr. Jones' Jeep. Over the course of the next month the police obtained more than 2,000 pages of tracking data they used to put Mr. Jones with some really bad dudes who dealt cocaine.

Mr. Jones was subsequently indicted for his role in the conspiracy. His first trial ended in a hung jury. Los federales then obtained a second indictment. Mr. Jones wasn't so lucky at his second trial - he was convicted and sentenced to life in prison.

On appeal he argued that the installation of the GPS device constituted an unlawful search and seizure. The appellate court said "yes" and "no." The court held that installing a GPS device on a car was not the equivalent of a search - based upon the Katz test of whether the owner had a reasonable expectation in privacy as to his movements on a public roads. But the court did rule that the data obtained while the car was parked in the couple's garage or driveway did violated the Katz test.

In U.S. v. Jones, 565 US _____ (2012), the U.S. Supreme Court held that the attachment of the GPS device did constitute a search as law enforcement personnel, in effect, trespassed upon Mr. Jones' property in placing the device on the undercarriage of his car. Justice Scalia took a trip in his wayback machine and held that the Fourth Amendment was designed to protect the citizenry from trespass by the state. He wrote that Katz did not supplant the concept of physical trespass as the test to determine whether something was a search - but that  it was an addition to the analysis.

Of course that doesn't explain why it's okay for the police to look through your trash can while it sits on your driveway waiting to be taken away by the sanitation engineers. It also doesn't jibe with allowing the police to wander up to a garage and look in the windows - or to look in the open windows of a house. In making those determinations, the Supremes looked at Katz and then looked away from the Bill of Rights.

In her concurrence, Justice Sotomayor castigated Justice Scalia for taking a narrow approach to the Fourth Amendment. Justice Sotomayor would rather use the Katz analysis for determining whether a search took place. In her view, today's technologies have taken us beyond the question of whether the police trespassed on someone's property. She also raised the question of whether we waive our reasonable expectation of privacy when we disclose private information to a third party (just think about your smartphone's GPS or the information you type in to register for certain websites).

Justice Alito was also concerned that the concept of trespass was passe and that it led to inconsistent outcomes depending on the surveillance methods used by the police. He also pointed out Justice Scalia's opinion failed to address the installation of tracking devices by car manufacturers such as GM's OnStar or Lo-Jack.

Justice Alito also questioned whether a motorist had a reasonable expectation of privacy regarding the movement of his car in public. He didn't seem to have too much problem with what the government did in Mr. Jones' case, but he said at some point such monitoring would raise questions. For Justice Alito, attaching the device to the Jeep wasn't the problem, the problem was the amount of time the device was allowed to transmit.

What we have here is the so-called conservative bloc of the Court ruling against the use of warrantless GPS tracking by the police to be unconstitutional based on 18th century common law trespass while the so-called liberal bloc arguing that the installation of the unit was unconstitutional because it violated Mr. Jones' reasonable expectation of privacy due to the length of time the device was transmitting. Would we have had a different decision had the device only been installed for a week, ten days, two weeks?

From my point of view, the concept of trespass should be the starting point for any Fourth Amendment analysis - with the Katz analysis used to determine if an intrusion into one's privacy not contemplated by the Founding Fathers constitutes a search. Relying on one without the other makes little sense. Left unsaid is how the Court plans to reconcile the holding in Jones with prior decisions ignoring the tort of trespass upon property.

For more analysis, please see:

"Supreme Court strikes down GPS tracking device, raises more questions in the process," Liberty and Justice for Y'all (Jan. 23, 2012)

"Reactions to Jones v. U.S.: the government fared much better than everyone realizes," SCOTUSblog (Jan. 23, 2012)

Book review: Pity the Billionaire

During the depths of the Great Depression capitalism faced its greatest challenge. The unfettered free market of the Gilded Age crashed and brought the economy of the United States (and western Europe) to its knees.

In response to the demands of the people, President Franklin Roosevelt pumped money into the economy to build schools, bridges, parks and buildings. We saw the creation of social security and unemployment compensation. Farmers formed organizations to prevent farms from being foreclosed upon. Banking reforms were enacted to prevent another banking crisis.

The Keynesian model of "priming the pump" during bad times prevailed until the late 1970's when the OPEC oil embargo threatened to bring the US economy to its knees once again. The stagnation of the Carter era paved the way for Ronald Reagan and his religion of free markets.

Over the ensuing 30 years, the reforms of the New Deal were gradually unwound and those who worshiped at the Altar of the Invisible Hand exported their ideology around the world.

And, for a time, everything seemed perfectly okay. Incomes were rising. Profits were rising. Land values were skyrocketing. CEO's were deified. And the free marketeers continued to preach their gospel of limited government interference with the economy.

But that all changed in 2008.

One investment bank after another bit the dust. The derivatives based upon collateralized debt obligations (sub-prime mortgages) tanked. The holders of these bonds found out they were toxic. The government didn't regulate the creation and sale of this instruments. That would have been interfering with the invisible hand of the market.

Banks failed. The housing market tanked. Credit dried up. Workers lost their jobs. People lost their homes. President Bush and his crew had no idea what was going on. They had no clue how to fix it.

President Bush pushed through the first bailout through Congress. While many folks were trying to figure out how to get their lives back on track, the federal government was handing out money to the folks who brought the whole system crashing down. The public was outraged.

But this time things were different. There was little rage against the free market ideology that caused the entire pyramid to collapse. What we saw instead was the rise of a protest movement of folks who called for even less government involvement in the economy. It was the great Republican reawakening. A movement that defied logic.

In his latest book, Pity the Billionaire: The Hard-Times Swindle and the Unlikely Comeback of the Right, Thomas Frank takes an in-depth look at how the New(est) Right created a protest movement in favor of even more laissez-faire economic policy.

The Right took the themes of Great Depression protests and flipped them inside out then sold their vision of free market capitalism to those who were upset that the government was handing out money to the people responsible for the Great Recession. Suddenly the problem wasn't the lack of government oversight, the problem was too much oversight. The problem wasn't the marketing of toxic securities and unregulated financial instruments (such as credit default swaps), the problem was that people and firms weren't allowed to fail.

Mr. Frank also has harsh words for President Obama and the Democrats. Once upon a time the Democratic Party was the party of the working class and the disenfranchised. That all changed in the 1980's when moderates and conservatives took over the party and got into bed with Wall Street. Without an effective check, the free marketeers led the country to the edge of the cliff and into the sea below.

The New(est) Right has, without a doubt, pulled off the biggest swindle in history.

The growing inequality

So what's the big freaking deal about the 1%? Just what exact share of the national income do the top 1% of wealthy Americans bring in?

The answer may surprise you.

The Paris School of Economics has compiled a database of the world's top incomes. You can pull up information from 26 nations around the world from the early 1900's up through 2008.

In the United States, the top 1% of income earners pulled in 15.4% of the nation's income in 2001. That share rose to 17.7% in 2008 (slightly down from 2007 as a result of the Great Recession). But that's just the proverbial tip of the iceberg.

In that same period, the top 0.5% of income earners increased their share of the national income from 11.7% to 13.8% while the top 0.1% of earners saw their share go from 6.3% to 7.8%.

Now just take a second to let those numbers sink in. In 2008, almost 18 cents out of every dollar earned went to the wealthiest 1% of the U.S. population; almost 14 cents went to the top half of the top one percent and almost eight cents went to the top .01% of the population.

Income inequality in the US is now at about the same level as it was before World War I. And we call that progress.

The numbers are astounding and give us a portrait of the growing inequality in this country.

Piling on

I'm no expert on maritime law. In fact, I know next to nothing about it. I know that if someone is injured on a ship out in the water the Jones Act comes into play and cost of litigation increases. I also know that the field is so specialized that there are some firms that handle nothing but litigation against cruise ships.

Having said that, though, there are some things that are quite odd about the goings-on surrounding the Costa Concordia mishap.

Typically in an accident case involving a commercial truck, the owner of the truck keeps the driver on the payroll. The company also avoids blaming the driver for the accident knowing that any such accusations will only come back to haunt it during litigation. They want to keep the driver happy because they know if they cut him loose he will only be too happy to discuss the litany of safety violations committed by his employer with the plaintiff's attorney. Now, after the litigation is resolved, all bets are off.

I found it odd that Costa Cruises, the owner of the cruise ship, would come out publicly and blame the accident on the captain, Francesco Schettino. The company can't distance themselves from Mr. Schettino. If they want to blame the accident on his negligence, they are setting themselves up for claims of negligent entrustment, negligent training and negligent oversight. (Of course I have no idea whether these are even valid causes of action in whatever court these suits will eventually be heard.) They are also just asking for someone to look into other incidents in which cruise ships were taken off course.

I don't know what happened last Friday aboard that ship. I'm certain it was a harrowing experience for everyone on board. I understand Mr. Schettino is human and subject to the same emotions as everyone else. Maybe everything is his fault. But the actions of Costa Cruises are peculiar and I do wonder what purpose they were meant to serve.

This bud's for you, or maybe it isn't

Outside the United States soccer is the sport of the working class. Tales of violence at soccer matches around the world are legendary. Violence used to be a problem at soccer matches in Brazil. That is, until the government banned the sale of alcohol at soccer stadiums in 2003.

The measure seemed logical. Rowdy, passionate fans and alcohol don't make the best of combinations. The ban has had limited success since there is no ban on the consumption of alcohol outside the stadiums.

FIFA, the corrupt governing body of world soccer, awarded the 2014 World Cup to Brazil. But now there are problems.

The Brazilians wanted to set aside some discounted tickets for students and seniors. FIFA didn't like that idea as it would reduce the filthy lucre that Sepp Blatter and his cohorts can take back home to Europe. But the biggest dispute has to do with alcohol.

Budweiser, maker of piss water beer, is a big (shall we say huge) sponsor of the World Cup. And, as a major sponsor, carries a bit of weight. It seems that the folks out in St. Louis (or wherever the company is headquartered after its sale) aren't too terribly happy about the prospect of no alcohol sales at the stadiums across Brazil. And Mr. Blatter, always happy to get down on his knees and do the bidding of FIFA's sponsors,  has informed the Brazilian government that there will be beer sales at World Cup venues - Brazilian laws be damned.

Now once upon a time sport was just that - sport. Now it is a business and the actual sporting event is but a marketing device for any corporation that wishes to peddle its products to the viewers. It is beyond absurd that FIFA is demanding that the Brazilians serve alcohol at World Cup venues.

Now I understand the network and cable folks view sports as the ultimate reality show. I also know that there are quite a few universities that are more than happy to let the broadcasters tell them when and where to play. But that doesn't make it right.

I hope the Brazilian government holds its ground and refuses to sell out for a beermaker. But I'm also fairly certain that that is exactly what will happen. And what message does that send to the Brazilian people? And what message does that send to other multinational corporations who don't like the laws in a particular country?

FIFA and Budweiser knew the rules before the tournament was awarded to Brazil. They need to learn to live with it. After all, it's all about the (beautiful) game.

The power of the mind

Yesterday in Houston, a federal grand jury indicted four white men accused of beating an African-American man at a bus stop. The defendants allegedly used racial epithets while beating him.

The four men are charged under the Matthew Shepherd and James Byrd, Jr. Hate Crimes Prevention Act and face up to 10 years in prison for what they said while assaulting someone.

They have already been charged with assault in Harris County and will face up to a year in the county jail if convicted. But apparently that's not enough.

It's not enough that they are facing state prosecution for their acts. Nope. We need to bring the power of los federales down on them. But not for the acts they allegedly committed. They need to be punished because of what they thought while committing their crimes.

And that's the problem. We are all free to think what we wish - at least we're supposed to be. We are all free to hold our own opinions. Some of our thoughts and some of our opinions may be distasteful to others. So what. Our thoughts should never be the basis of a criminal charge.

The only thought that matters is whether you meant to do what you did.

The only crime mentioned in the U.S. Constitution is treason. The states had their own criminal laws. The Supreme Court was to hear cases involving disputes among the states or between individuals residing in different states or disputes involving the United States and another country. The Founding Fathers never intended to use the federal courts to resolve local criminal matters.

Hate is an awful emotion. Hate makes people do stupid things. But there is no good reason to make it a crime to hate someone. The four men in Houston allegedly assaulted another man. If proven, that's a crime.

Sure, maybe the alleged victim thinks a year in the county jail isn't enough. Well, it's not up to him. The state legislature (the voice of the people, or so the textbooks say) has decided that one year in the county jail is sufficient punishment for beating someone up.

A prosecutor friend of mine told a jury during the punishment phase of a trial that punishment has three purposes. The first is to punish the offender. The second is to rehabilitate the offender. The third is to act as a deterrent to others. Nowhere in there does it say that that the purpose of punishment is to avenge the victim.

It's wrong that these men are now facing up to 10 years in prison because of the words they allegedly uttered. Do the math - that's one year for an assault and nine years for what they said and thought.

If you can make it a crime to hate someone, how much further down the road do you need to go to make it a crime to have other thoughts that someone deems unworthy?