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.
The Court of Appeals recently held that even though implied consent to blow is only given by persons who drive or attempt to drive, it is sufficient to suspend a driver’s license or privilege to drive if the officer merely has “reasonable grounds to believe” the person was driving.
The Court of Appeals ruling was based on a provision in the law governing the issues that can be raised at a hearing. It only requires the MVA to show the officer had “reasonable grounds to believe” the person was driving. As it has done in other cases, the Court of Appeals has created two different standards, one for the criminal case, and another for the license suspension hearing.
In the criminal case, the Court has recognized the “stationary shelter” defense. A person may use the car to “sleep it off,” even with the motor on and not be driving, and therefore not be guilty in the criminal case. At the MVA hearing, which is separate from the criminal case, the MVA could satisfy the lesser standard of “reasonable grounds to believe” the person was driving, and the person can lose his or her license or privilege to drive in Maryland for 270 days for a first refusal or two years for a second or subsequent refusal or be required to participate in the ignition interlock program for one year. (Important note – the interlock program only applies to Maryland licensees – out of state drivers are out of luck.).
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:
The National College for DUI Defense (NCDD) just concluded its second annual Serious Science seminar Saturday in Ft. Collins, Colorado. Attended by 21 lawyer students, the five day seminar featured a day and a half of lectures by the nation’s leading experts on forensic blood alcohol testing, Jimmie Valentine, Ph.D., Carrie Valentine, Ph.D., Janine Arvizu, NCDD Regent Joe St. Louis, Patricia Sulik, Ph.D. and Robert Lantz, Ph. D., followed by a tour of a working forensic laboratory, Rocky Mountain Instrumental Laboratories. Rocky Mountain Instrumental Laboratories in Ft. Collins, Colorado, is run by Patricia Sulik, Ph.D. and Robert Lantz, Ph. D.
The science portion was followed by three days of lectures and breakouts on trial techniques taught by by two veteran faculty members of the Gerry Spence Trial Lawyers College, Marjorie Russell, and Francisco “Paco” Duarte. The TLC website says:
Trial skills are only part of being a force in the courtroom. The trial lawyers’ power originates from within. Knowledge of oneself gives the lawyer the capability to know others and to connect with each person in the courtroom including the witnesses, the judge and the jurors. The power of TLC’s methods come alive through creative, spontaneous, outside-the-box innovations that capture juries and move them to justice.
On Thursday, October 16, 2014, Leonard Stamm received from the Maryland Bar Foundation, the prestigious Legal Excellence Award for Advancement of Professional Competence. He was nominated by Pilar Nichols. Other award recipients were: Steven P. Lemmey Legal Excellence Award for the Advancement of Public Service Responsibility to Steven P. Lemmey (posthumously, accepted by Ms. Lemmey), nominated by Judge Glenn Harrell; Legal Excellence Award for the Advancement of Public Understanding of the Law to The Honorable Pamila J. Brown, nominated by Judge Barbara Kerr Howe and Rick Miller; Legal Excellence Award for the Advancement of Unpopular Causes, to Professor Michael Millemann, nominated by Judge Dennis Sweeney; and, Legal Excellence Award for the Advancement of the Rights of the Disadvantaged, to the Homeless Persons Representation Project (accepted by Antonia Fasanelli), nominated by Natalie McSherry.
On May 1, 2013, Leonard Stamm was given the first annual Fred Bennett Zealous Advocacy Award by the Maryland Criminal Defense Attorney’s Association (MCDAA). This award will be given annually to the member of MCDAA who best exemplifies the qualities that Fred Warren Bennett possessed which made him a courageous litigator and tireless advocate for criminally accused individuals.
Fred Warren Bennett was the former Federal Defender for Maryland (1980-1992), the Prince George=s County Public Defender (1978-1980), and a full-time Law Professor at Catholic University (1992-1997) before entering private practice in 1998. Among his many high profile clients were accused spies Ronald Pelton and John Walker and several men he represented after they had received death sentences. Fred was an expert on evidence, federal trial practice, and capital defense litigation. He won numerous awards, authored over 30 law related articles and lectured at many Maryland and national criminal defense seminars and was a mentor to a host of prominent Maryland criminal defense lawyers. Fred was incredibly forthright, a character, an incredibly zealous advocate, and a true legend in the Maryland criminal defense bar. Fred Bennett unexpectedly passed away on July 1, 2007.
A recent internet news story described a DUI roadblock or sobriety checkpoint in Dunkirk, Calvert County, where 1054 cars were stopped and one person was arrested for drunk driving. Four Arrests Made at Dunkirk Sobriety Checkpoint (other arrests were made but not for drunk driving). This would appear to have violated the Fourth Amendment under the rule announced in Michigan Dept. of State Police v. Sitz.
In Sitz, the US Supreme Court applied a three-part balancing derived from earlier cases addressing random identification checks, random license checks, roving patrols, and checkpoints near the border. The three factors considered were: the state’s interest in enforcing the drunk driving laws; the extent to which the state’s interest was advanced by the checkpoint; and the level of intrusion to individuals stopped by police.
In Sitz, the Supreme Court found that Michigan had a high interest in enforcing the drunk driving laws. The roadblock was found to be sufficiently selective in advancing that interest. The roadblock netted two arrests for 126 vehicles stopped. Expressed as a percentage, about 1.6% of the drivers passing through the checkpoint were arrested. The Court noted that in the border checkpoint case, a ratio of 0.5% illegal aliens detected to the number of vehicles stopped had been held to pass constitutional muster. As to the level of intrusion, the Court noted that the checkpoints were administered according to guidelines that reduced the discretion of officers in the field. The average delay of individual vehicles was 25 seconds. Thus the roadblock did not violate the Fourth Amendment.
In the Dunkirk checkpoint, to the contrary, only one person was arrested of 1054 drivers, or an arrest to vehicle rate of under .1%. This is lower than the previously approved ratio, and would seem to establish that the Dunkirk checkpoint was ineffective, and therefore, in violation of the Fourth Amendment when the low effectiveness is balanced against the State’s interest and the level of intrusion.