Articles Posted in Constitutional rights

This week, my friend, Brian Karem, editor of the Montgomery Sentinel and writer for Playboy, after months of abuse of the media by Trump, finally fought back. Calling out the President’s lies are not “fake news.”  The press is not the “enemy of the people.”

President Trump, by calling the news media “the enemy of the people” and calling facts “fake news” is attacking all of us. Thursday and Friday he attacked Joe Scarborough and Mika Brzezinski.  Today he released a wrestling video, showing him punching and wrestling a person with a CNN logo on his head.  He calls CNN FNN – fake national news.

There is a reason that freedom of the press is enshrined in the First Amendment. The Founders set up an elaborate system of checks and balances that is being tested as never before, at least during our lifetimes.  With a Congress unwilling to restrain the executive, willing to steal Supreme Court seats, an executive that repeatedly lies, insults, and bullies his opponents, an independent counsel that could be fired as soon as Trump thinks he can get a way with it, and a president that is unwilling or unable to defend the country against a Russian cyber attack, the media is our last line of defense.

Yesterday, the Supreme Court ruled that the injunctions against enforcement of Trump’s travel ban, that had been upheld by the Fourth and Ninth Circuits would be upheld in part and reversed in part.  Trump claimed this was a victory, but a careful reading of the majority opinion reveals otherwise.  The plaintiffs in the cases argued for a stay because the travel ban would cause irreparable injury to them and by implication, persons who were similarly situated.  The parties who claimed irreparable injury were parties who had family members, friends, and students coming to the US.  Foreign nationals who had no connection with anyone in this country did not bring the lawsuit, and have no constitutional right to come to this country.  In a sense the Supreme Court basically said that anyone that claimed irreparable injury and those similarly situated (“who have a credible claim of a bona fide relationship with a person or entity in the United States”) could not be barred from entering the country.  To the extent that the lower court’s injunctions covered parties not involved in the lawsuit, in essence, they were overbroad.  Essentially all of the plaintiffs prevailed in the Supreme Court as to their interests.  Trump prevailed against foreign nationals who were not active in the litigation.  In other words, Trump lost to no one initially, and then prevailed over them.  Everyone who sued Trump won at the injunction stage.

There can be no doubt after Trump’s bizarre press conference with the Romanian President yesterday, that the lunatics are running the asylum.  The only question is, when will enough honest and honorable Republicans admit this, take steps to end our national nightmare, and free the nation and the world from Trump’s paranoid and delusional roller coaster ride?

The day after James Comey testified under oath that Trump demanded his loyalty, asked him to stop investigating Michael Flynn, and lied about the reason for Comey’s firing, Trump came out and called Comey a liar and said he would repeat his claims under oath.   Hmmm who should we believe, the career boy scout or the pathological and delusional liar?

Under Trump’s view, fed by Stephen Bannon and Corey Lewandowski, among others, Comey was part of the so-called “deep state,” you know, the secret group of intelligence officers that really run the country.  Yes Trump’s mind is under the control of the alt-right lunatic fringe.  Trump is mysteriously not bothered in the least by Russia’s cyber attacks on our country.  For someone who repeatedly claims there was no collusion with the Russians,  everything he and his administration does makes them all look guilty.  The smoke is so thick we can’t breathe.  We will find the fire.

Last week, on March 22 and 23, 2017, the National College for DUI Defense and Texas Criminal Defense Lawyers Association successfully concluded their jointly sponsored annual Mastering Scientific Evidence seminar in New Orleans.

Speakers included Robert Hirschhorn on Winning Voir Dire in Breath, Blood & Accident CasesAmber Spurlock on Mining for Gold in Blood Discovery: Obtaining What You Need & Using It To WinDonald Bartell on Successfully Defeating Hospital Blood Test Cases, Dean Jim Nesci on The Cure for Bad Breath 3.0Alan Wayne Jones, BSc, PhD, DSc on Over 40 years and 400 Published Articles in Alcohol Research: Pushing Science to the LimitsRobert J. Belloto Jr., R.Ph., M.S.2, Ph.D. on Prescription Medication & Alcohol: Interaction and Metabolism – Determining Therapeutic v. Non-therapeutic Levels, Alfred E. Staubus, Pharm.D., Ph.D. on Breath Testing: Reported Measurement of Uncertainty for Various Evidential Breath Testing Machines and Aspects of the Biological Variability, Donald J. Ramsell on Method Validation And Admissibility Of Forensic Alcohol And Drug TestsAndrew Mishlove on Blood Testing for Drugs: Methodology of How It’s Done & Success Challenges, Dr. Jimmie L. Valentine on Exposing False Positives in Drug Testing, Terry A. Wapner on Affecting the Breath Test Results – LPR vs. GERD, and Steven W. Rickard on Winning with Speed, Distance & Time.

StammJones-2-225x300Among the speakers listed above was A.W. Jones, the leading expert in the world on blood and breath testing with over 400 published articles, who answered questions from Leonard R. Stamm regarding calibration of breath test equipment and calculating uncertainty.  With respect to calibration, Dr. Jones opined that where a state has different levels of culpability carrying different punishments, such as Maryland, where the Motor Vehicle Administration suspends driver licenses for test result of 0.08 or above but less than 0.15 and for a test result of 0.15 and above, that the state should calibrate its breath testing equipment at both levels.  This is important because Maryland only calibrates its breath test equipment at 0.08.  Dr. Jones also stated that there is currently no accepted protocol for determining uncertainty.  Dr. Jones preferred method for eliminating uncertainty is to take the mean of two measurements and deduct 15% of the mean to attain a certainty of 99.9%.

This is not and will never be normal.  Trump’s continued lying and fabrications are the product of a deeply disturbed mind. Congress, we cannot continue like this for four years and you know it.

• Refugees coming from Mexico are not likely to be criminals and rapists.

• Refugees from Muslim countries who have been already subject to extreme vetting are not likely to be terrorists.

Sometimes courts must decide cases where a question is raised as to whether the exercise of governmental power violates the rights of a person or a class of persons.  Courts use different tests, different levels of scrutiny, to determine the legality of governmental actions and whether the government is denying due process, equal protection, and other rights.  The most deferential of these tests to the government is called the rational basis test.  Under the rational basis test, the challenged law must bear a rational relationship to a legitimate state purpose.

During the oral argument in the case of Washington, et. al. v. Trump, et. al., the judge questioned whether there was a rational basis for the Executive Order (EO) in light of the fact that the seven countries named have not produced a single terror attack since 2001.  The government seems to be arguing that they do not need a rational basis since the Constitution and laws vest in the President unreviewable authority over immigration.  Alternatively, the government in its appeal brief cites the Boston judge to suggest that a law cannot be questioned if it states “a facially legitimate and bona fide reason” to ensure “the “proper review and maximum utilization of available resources for the screening of foreign nationals” and “that adequate standards are established to prevent infiltration by foreign terrorists.”

While under ordinary circumstances, it might be easy for the government to meet this standard, here it is not.  For one thing, there is no mention or explanation given that current screening efforts are insufficient to protect the US, and if they are, what additional screening is necessary.  The Seattle judge obviously thought the fact that there has not been any demonstrated danger to us coming from these countries was important.  Experts have written that the effect of Trump’s immigration EO on our safety and security is lessened by the EO.  The people who have been primarily affected by this are legitimate VISA holders, including women and children, educators, students and relatives of individuals already here.  These people are not a threat to us.  They are the victims of those who are.

So here we are, in Donald Trump’s unreality-fantasy.  Where the President is deranged, unhinged, and out of control.  Where accurate and truthful news is the enemy.  Where fake news and lies determine policy.  Where science is distorted and evidence ignored.  Where prejudice is disguised as reason to justify cruel policies that harm American interests.  Where the President and his aides have unleashed and continue to unleash a virtual torrent of falsehoods.  The crisis we face is unprecedented in our history, unlike anything we have seen before.

Each day brings new horrors, worse than the horrors of the day that preceded it, as Trump exercises power in an unconstitutional and chaotic manner in the delusional belief that his actions are good for our country.  The tragic news of today happens to be Trump’s illegal order banning refugees from seven countries.  None of the terror attacks in this country dating back to well before 9/11 have been committed by persons from the seven countries.  The countries where those terrorists that did come from overseas originated are not in the list.  Although Trump claims this is not a Muslim ban, it only applies in Muslim countries, and it is perceived in the world as a Muslim ban. It doesn’t make us more safe as the people being shut out are people that have already been subject to extreme vetting or green card holders who made the mistake of being abroad at this time. It is stupid and self-defeating. As Malcolm Nance notes, “this will damage us worldwide” and help our enemies. “This will create terrorists.” And this is not who we are. Embarrassingly, Canada by contrast states it is welcoming refugees, using our values to make us look like fools.

The US is now being tested as it never has before.  Today’s NY Times discussed the unprecedented volume of falsehoods in “‘Up Is Down’: Trump’s Unreality Show Echoes His Business Past.”  The story noted that:

You can’t put lipstick on a pig.

Recently the Trump campaign has hired Kellyanne Conway and other spokespeople in attempt to put a positive spin on Trump.  They look nice and speak well.  But you can’t put lipstick on a pig.

I am a Jew.  I was born in New York in 1955.  I may not practice or believe much, but had I been born 15 years earlier in Germany I would have been put to death because I my mother was Jewish.  The death camps were the outcome of years of anti-Semitism, words that people acted upon, taken to its despicable, criminal, and murderous end.

The National College for DUI Defense (NCDD) and the National Association of Criminal Defense Lawyers (NACDL) just wrapped up their annual Las Vegas seminar.  As usual, it was well attended and the presentations were very informative.

The conference featured presentations on Thursday, September 22, on cross-examination by Jim Nesci; accident reconstruction by Steven M. Schoor; succeeding without an expert by Tommy Kirk; and, the psychology of winning by Allen Fox, Ph.D.  The conference continued on Friday, September 23 with presentations on case law update by Don Ramsell; NHTSA’s ARIDE program (Advanced Roadside Impaired Driving Enforcement) by Tony Palacios; preparing for direct and cross of experts by Virginia Landry; ethics by Jim Nesci and nine other regents; gas chromatography for jurors by Suzanne Perry, M.Sc.; closing arguments by Joe St. Louis and Tommy Kirk; field sobriety test facts and fallacies by Tony Palacios; and, prescription medication issues by Fran Gengo, Pharm. D., Ph. D.  The conference concluded today with presentations on closing argument by Tommy Kirk; cross of the standardized field sobriety tests by John Hunsucker (for attorneys with 1-5 years experience) and by Don Ramsell (for attorneys with over 5 years experience); analyzing a DRE facesheet and narrative report by Steven Oberman and Tony Palacios; breath testing by Jim Nesci; defending the impaired marijuana case by George Bianchi; and, how to try your first DUI case by John Hunsucker.

This is the endorsement of the New York Times.  I was going to write one but the Times did a great job with it.  So I am reprinting it here.  I will add that her Supreme Court and other judicial picks will be much better than any her opponent would choose.

In any normal election year, we’d compare the two presidential candidates side by side on the issues. But this is not a normal election year. A comparison like that would be an empty exercise in a race where one candidate — our choice, Hillary Clinton — has a record of service and a raft of pragmatic ideas, and the other, Donald Trump, discloses nothing concrete about himself or his plans while promising the moon and offering the stars on layaway. (We will explain in a subsequent editorial why we believe Mr. Trump to be the worst nominee put forward by a major party in modern American history.)

But this endorsement would also be an empty exercise if it merely affirmed the choice of Clinton supporters. We’re aiming instead to persuade those of you who are hesitating to vote for Mrs. Clinton — because you are reluctant to vote for a Democrat, or for another Clinton, or for a candidate who might appear, on the surface, not to offer change from an establishment that seems indifferent and a political system that seems broken.