Ichiblog

Here's a quote from the L.A. Daily News on the Los Angeles county seal issue (link via How Appealing):

The American Civil Liberties Union on Wednesday reached a tentative agreement with Los Angeles County government to replace a historic cross on the county seal with depictions of a Spanish mission and Native Americans. (emphasis added)

Why does the ACLU need to agree with anything? The county could vote to change the seal to have a giant middle finger and a burning flag, and the ACLU could no longer bring their suit on Establishment Clause grounds.

The only thing I can think of is that the ACLU could still sue because there are many seals still around, and the case would not be moot even after a vote to change the seal because the docrtine of "voluntary cessacion of illegal activity" might not render the case moot. However, this would be a PR disaster for the ACLU: forcing a county to pay for litigation to change something they are changing anyway.

I dislike that the ACLU has such a role in this already unnecessary change (that the county nonetheless is permitted to make), and is celebrating it on politically correct, non-constitutional grounds:

The county has offered something that will be more inclusive and representative for the residents of the county.

Even if I were to concede that it were more "inclusive" for excluding the cross, I doubt a Spanish mission and Native Americans are more "representative" of the population of Los Angeles--I'd put money on the vast majority of latino immigrants being christian, as well as many residents of other ethnicities. I doubt the old Spanish or Native population outstrips this demographic. And, of course, if the cross merely represents history, then whether it is representative of the population is irrelevant.

Being that I'm interning for the L.A. City Attorney this summer, I think I should blog something periodically about criminal trial work. I'll start today with my least favorite defense: the absent witness.

This defense is put on when only a few of the possible witnesses take the stand for the prosecution. The defense attorney then asks why these other witnesses (whose unheard testimony is surely chock full of currently unknown details) did not testify for the jury. The goal is to make create doubt from a seemingly incomplete story, and make the people's case look haphazard and as if they ignored other relevant leads. From what I can tell, this is proper as long as the attorney doesn't argue that the jury should speculate as to what this testimony would have been, only that its absence is noteworthy.

My dislike for this defense is simple: It is disingenuous. The defense can subpoena anyone it wants, and must be made aware of all exculpatory evidence that a witness could provide, so therefore if the absent testimony is relevant there is nothing at all keeping it from the jury. Instead of this reality, the absent witness is presented as a mini coverup. Also, it borders on improper speculation.

Next I might blog about my least favorite tactic that, probably more often than not, works in the state's favor: moral turpitude used to impeach credibility.

As a Rush fan, I want to commemorate this site's 2112th guest.

A federal judge declared the federal ban on partial-birth abortions unconstitutional, the SF Chronicle reports. In a 120-page opinion, Judge Phyllis Hamilton said that the ban could endanger women's health, and puts a "substantial obstacle" in the path of a woman seeking an abortion. Link via How Appealing.

This is all to be expected, since if one doesn't buy the government's legislative finding that the particular procedure is never necessary to protect the health of a woman, then the ban is identical to the one found unconstitutional in Stenberg v. Carhart.

However, I think I could have kept this opinion under a page: Congress enacted the ban under its commerce power, but partial-birth abortions do no affect interstate commerce, so Congress had no power to enact this ban. Thus, the law is unconstitutional.

The Centrist (formerly of Law From the Center) is back on his new blog Jag Central. I'm told it will be more news, less editorializing, and in any event it is good to have him back.

The AP reports here that Italy has passed tough new IP legislation to combat illegal internet file sharing:

The law calls for up to three years in prison for using the Internet illegally for commercial purposes. Such offenses include selling content for which the vendor does not hold the intellectual rights. Fines for infringements run as high as $300,350, though smaller fines of up to $1,250 would be imposed for simply downloading copyright works for personal use.

I don't know what kind of grudge Italy has against file sharers or technology, but this is pretty harsh. We need one country that will experiment with free use of copyrighted works, but it is doubtful that any major player will do so, nor will any European countries.

This is a little disturbing.

I gotta disagree with PG over at De Novo on this one. She posts here on the actions of two boys: the first convinced the other to kill him, though the other had no knowledge of the suicide and thought he was joining the British Secret Service, using an internet chat room. PG comments on the would-be assassin's light sentence: "He thought that he was committing murder, not assisted suicide, when he began to stab John, and his punishment ought to fit more closely with his intent." Assuming my criminal law class knowledge overlaps with current day English criminal law, legal impossibility can be a defense to a crime; intent is not the only thing that matters, but whether the ultimate crime could have been committed. Some other examples of weird things that maybe should be, but aren't criminal, are:

• Breaking into your own house (because you think it is another's house) with the intent to steal something does not a burglar make.
  
• Marrying someone thinking you are already married, but in reality your first marriage was not legal, is not polygamy (assuming this is criminal).
  
• Committing a sex crime believing a girl is under fourteen, but she is actually fifteen, does not result in guilt as if the child were under fourteen.

By the same logic, trying to kill someone that has consented to that killing (and actually put into motion the whole plot) seems closer to an assisted suicide than a murder under a legal impossibility theory: It would be anomolous to call the crime a murder (as to the killer) and a suicide (as to the potential victim).

At the same time, impossibility is a fuzzy doctrine, and legal impossibility could just as easily be characterized as factual impossibility, which does not negate the crime. Still, this case isn't so simple, and I think the sentencing for attempted assisted suicide is justified, even though reasonable people may disagree. The point is that it is not a simple case.

We live in interesting times. The AP reports here that an Idaho man, Sami Omar Al-Hussayen, has been on trial for "provid[ing] material support to terrorist groups--not with cash or arms, but with computer expertise." More specifically, he "set up and ran Web sites that prosecutors say were used to recruit terrorists, raise money and disseminate inflammatory rhetoric." It is hard to know the precise details of his conviction, but it is plain, as the article points out, that this will be a major test of the reach of the PATRIOT Act when dealing with incitement to lawless acts.

Current First Amendment doctrine follows the test from Brandenburg v. Ohio, namely that speech may be criminalized only if "such advocacy is directed to inciting or producing imminent lawless action and is likely to incite or produce such action" (emphasis added). For my purposes, however, it is more interesting to consider two cases that have not been specifically overruled (as Professor Volokh's casebook points out), and dealt with a very different time in a very different political climate: Dennis v. United States, and Yates v. United States.

Dennis upheld the conviction of a communist who advocated the overthrow of the U.S. government, and Yates clarified Dennis in certain regards. Justice Frankfurter's concurrence in Dennis contains very apt words: "The right of a government to maintain its existence - self-preservation - is the most pervasive aspect of sovereignty. 'Security against foreign danger,' wrote Madison, 'is one of the primitive objects of civil society.'" It is easy to claim the primacy of the freedom of speech when faced with times where words are indeed harmless, but when faced with a situation, as with terrorism, where words can generate real harms (raising of funds, propaganda for recruiting, etc.), should the government not draw a line a little closer to the abstract in order to prevent grave harms?

With identifiable terrorist groups at large, and membership hard to pin down, a Dennis-like situation is indeed brewing. Consider these words from Yates: "[I]ndoctrination of a group in preparation for future violent action, as well as exhortation to immediate action, by advocacy found to be directed to "action for the accomplishment" of forcible overthrow, to violence as "a rule-or principle of action," and employing "language of incitement," is not constitutionally protected when the group is of sufficient size and cohesiveness, is sufficiently oriented towards action, and other circumstances are such as reasonably to justify apprehension that action will occur." (Quoting Dennis). This reasoning could indeed by applied to the present situation. The question, then, is whether we should.

I don't know that these times (or the facts of the AP story above, which are sparse) would justify a relaxing of the Brandenburg test, although I think we would be foolish not to consider the question thoughtfully when there are real dangers here. Just as governmental power may be abused, so may individual liberty.

But just so I don't write a post without taking a stand, I'm for upholding Brandenburg, with the resulting unconstitutionality of any act that allows punishment for more abstract incitement. This is probably due more to faith in law enforcement's other means than fear of the government's power; it is always easier to never grant a power than to turn it off once activated, and we should not do so unless things really become dire.

Volokh posts yesterday:

I just handed in the grades for my Free Speech Law exam, and called and congratulated the A+ and A students, always my favorite part of the grading weeks.

Well, there's no message on my machine. Oh well. Not that I'm really surprised :)

It feels like there is a lull in the legal world now that law school is over for another year. I don't know if there is a cause ane effect here, as legal news is generated by more than just academics. Nevertheless, blogging has been slow the last few weeks. Sigh.

I start work on Tuesday, and hopefully I will get to do something in court this summer. More on this as it develops.