25 February 2024

COMING NEXT?

State of Texas

Court of Criminal Appeals

………………………………

People

    v

Harris

…………………………………….


Chief Judge H. Christopher, for the Court:


Defendant Donald J. Harris appeals his conviction for murder in the first degree arising out of his wilful destruction of living gametes on November 13, 2022.


The facts here are not in dispute. To clarify the import of this decision and make its consequences unambiguous, we set out here undisputed language from definitions from federal government authorities, quotations from Texas statutes, federal and Texas Constitutional principles, and quotes and holdings from the Supreme Court of Alabama.


This court wants to be certain there is no confusion about the extent of our holdings in this case, and therefore will quote verbatim key elements of our decision. 


The federal “National Human Genome Research Institute, has provided this definition of a “gamete:”


A gamete is a reproductive cell of an animal or plant. In animals, female gametes are called ova or egg cells, and male gametes are called sperm. Ova and sperm are haploid cells, with each cell carrying only one copy of each chromosome. During fertilization, a sperm and ovum unite to form a new diploid organism.


The Texas  Child Protection Act provides;


“Wilful injury to a child shall bear the same criminal and civil consequences as wilful injury to any other person in the state.“  

Article III of our State Constitution, promulgated immediately subsequent to Dobbs v Jackson mandates "The Sanctity of Unborn Life.”


At issue in the case before us today is the finite definition of “unborn" life. Absent precedent in Texas jurisprudence, we take guidance from the Alabama state Supreme Court decision, Page v, Center of Reproductive Medicine, 


That Court decided the question of whether the statutory phrase "unborn child" included a female gamete that had been mixed in a laboratory Petri dish with a male gamete, before being reinserted into a laboratory freezer. The intention was later to remove the now-fertilized gamete from the freezer and insert it into the uterus — a process known as IVF, i.e., “In vitro fertilization.”


We are especially persuaded by the reasoning that led to the Alabama court’s conclusion that a frozen fertilized gamete was indeed an “unborn child.” The court noted:


"Man is created in God's image" and "man's creation in God's image is the basis of the general prohibition on the intentional taking of human life"....”Therefore , so that God could eternally dwell and abide with man, he willed him to be in some manner similar to him, to bear his image.” (emphasis supplied.)


The Alabama court reasoned:


“In summary, the theologically based view of the sanctity of life adopted by the People of Alabama encompasses the following : (1) God made every person in His image; (2) each person therefore has a value that far exceeds the ability of human beings to calculate; and (3) human life cannot be wrongfully destroyed without incurring the wrath of a holy God, who views the destruction of His image as an affront to Himself. Section 36.06 recognizes that this is true of unborn human life no less than it is of all other human life, that even before birth all human beings bear the image of god, and their lives cannot be destroyed without effacing his glory.


In short,"all men… are endowed with life by their creator. All human beings bear God’s image.”


Applying these principles, it becomes easy to see the Alabama court was correct. Indeed, its reasoning and conclusion leads inevitably to the conclusion in this case:


The Page decision, along with the 6–3 decision of the United States Supreme Court in Dobbs, and our recent Constitutional amendment, leave no doubt;  the word "child “ in our state legal code includes unborn children.


Two inviolate principles result from this decision:

 

1. In this state, all statutory references to "child" include unborn children, whether gametes in a laboratory or in a uterus.


2. If all human beings are endowed with life by the creator, and they all bear God's image, then that must be true of each of the two elements that physically create human life, whether in the uterus or the Petri dish. Each bear's God’s image, i,e., the female gamete bears god’s image, as does the male gamete, and we are required by our federal Constitution’s 14th amendment to provide equal protection to both.


Once those principles are established, the conclusion of this case becomes obvious: 


 The trial record shows that the  24-yr-old defendant was observed watching a television show that obviously aroused his erotic impulses. The defendant does not deny what happened next: He masturbated into a tissue that he ultimately flushed down the toilet. His semen was every bit as important to the creation of God's image as the female egg. His gametes included living cells, observable under a microscope swimming about. Each of the destroyed gametes included a full copy of a set of chromosomes, that, when united with a female set of chromosomes, whether in utero or in a laboratory test tube) would have dictated the sex, skin color, eye color, and thousands of the characteristics that make up God’s image. This defendant’s semen was a key ingredient to that image, and was every bit of a determinant of the characteristics of a resulting fertilized egg as was the female gamete. Accordingly it follows, that the destruction of defendant’s semen was as violative of God's will as the destruction of a fertilized or unfertilized female gamete. 


Conclusion:


This court sees neither logical nor religious distinction between the role of a male gamete or a female gamage, either before or after they come in contact with one another, or whether the contact occurs in a uterus or a test tube. 


The defendant is to be held without bail, and the trial judge is to set a date for sentencing.



Thomas, J, concurring:


The Issue of contraception was not directly involved in the facts of this case, and therefore the court did not deal with it in its opinion. But this court has made eminently plain that it ''wants to be certain there is no confusion about the extent of our holdings in this case.” and I respectfully submit that our holding today that wilful destruction of a male (or female) gamete violates the laws of the state of Texas has an undeniable effect on virtually every form of contraception as well as on numerous forms of sexual activity. 


I suggest Dobbs has cleared the way for each state to make its own rules on this subject matter.


Forewarned is forearmed.


A bientot!

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13 February 2024

BONE SPURS

If you want a measure of sanity, or at least good judgment, take a look at this scenario:

An otherwise healthy young man beat the draft by getting a letter from his father's tenant, saying the playboy had "bone spurs on his heels,” and was therefore ineligible for the draft, saving our hero from military service during the Vietnam War. No records have ever been found substantiating that physical condition – – beyond records showing that Donald Trump's father was the landlord of the podiatrist who wrote the letter to the draft board certifying the alleged physical infirmity of the landlord’s son.  Oh yeah, there is much evidence showing the podiatrist enjoyed a preferred monthly rental for his offices.


One would think that a sensible, sane, logical person who enjoyed the favor of evading the draft, while others were being killed in service of their country, would not make frequent negative references to those who did serve their country, basically protecting the draft-dodger’s ass.


If that be the test of sanity and sensibility, then Donald Trump certainly fails it. He has on several occasions, mocked those who have served their country, and at a great personal cost. Even while serving as Commander-in-Chief of the United States military, President Trump, mocked anyone fool enough to wear a United States military uniform.


 (Warning, I am not objective on this issue. I am proud of the framed document on my wall, certifying that Sergeant E-5 Martin London has honorably completed his assigned military obligations to his country.)


Recall, please, that on a trip to France, President Trump canceled a scheduled visit to an American military cemetery because his helicopter could not fly in the rain and the Secret Service wouldn't take him by automobile. Both statements were lies. Four people who were involved in the conversations that day said the truth was Trump feared his hair would become disheveled in the rain, and he did not believe it important to honor American war dead: he is reported to have said, ”Why should I go to that cemetery? It's filled with losers and suckers.”


He mocked John McCain’s military service and the years he spent in North Vietnam’s prison camps by saying "I prefer fliers who do not get captured.”


And now he has mocked his political adversary, Nikki Haley, by suggesting her husband, has left her, when, in fact, he is a Major in the United States Army serving a tour of duty in Africa. (Apparently, Major Haley lacks bone spurs in his heels.)


When you add this to his most recent statement inviting Putin to attack NATO countries that do not spend enough money on their military establishments, you come to the conclusion that the man is borderline nuts. Scary, but nuts.


It is ironical that so much of Trump's support comes from militia types, a high percentage of whom are military veterans. What is going on here? The Commander-in-Chief mocking his own troops, especially those who made the ultimate sacrifice? Who is crazy? Trump, or the MAGAS who support him– or both? I vote for the latter.


Whatever a psychologist might find to be the explanation for this twisted personality, there can be no doubt that even if Trump doesn't win the election, he will still get millions of votes. This is Jonestown expanded to a national level.


And yet, this psycho has not only recruited a large band of lawyers, followers, and assorted thugs to be his loyal followers, he has flummoxed our court system so effectively that Article III of our Constitution is virtually non-functional in the face of this man's 91 counts of criminality, and a judicial finding of insurrection.


All of the above does not speak highly of the Democratic Party. The notion that Trump remains a viable candidate to be a free man, no less the President of the United States, is an indictment of the party’s incompetence and calls for dramatic action.


 I wish I knew exactly what we should do, but I don't. If there is no one in the Democratic Party with more knowledge and experience than I, then surely we are up shit’s creek. 


There are, however, two areas I see as becoming more and more obvious:


First, the situation at our southern border is a disgrace, and the Republicans have used it to its maximum potential— especially the Governor of Texas who has now shipped tens of thousands of migrants to the streets of New York, Chicago, Denver, and other Democratic strongholds. The tactic is destroying state and city budgets and enraging municipal voters. I know the immigration laws are complicated and have been a subject of political discussion for a long time. Nevertheless, the bottom line is Biden is in charge, and he owns this problem and if he doesn’t do something, it may prove to be the downfall of his party, not to mention the election of a dishonest, borderline insane autocrat who threatens to end our democracy, the Constitution be damned.


Second, though we don't like to face it, is Biden too old for this job? For one thing, what are the odds of his making it through (with all of his faculties) to January, 2028?  My guess is no better than 50-50. I hope I am wrong.


Is there nobody in the Democratic Party who can figure this out before it's too late? 


A bientot.

………………..

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06 February 2024

WELCOME, WHOEVER YOU ARE AND HOWEVER YOU GOT HERE1

The economy is up, inflation is receding, wages are rising, unemployment is at the lowest level ever, Biden hasn't tripped going up the steps in months, so what's left for the Republicans to campaign about? Immigration, that’s what.


Until this past weekend, I regarded the issue as bullshit. Republican and Democratic Congresses have been struggling with the immigration issue for years, maybe even decades, But things are different today. Not only has immigration volume increased, but the people coming across the border are different. 


Sunday night, a segment on ”60 minutes” was an eye-opener. Film showed immigrants seeking asylum sneaking into the United States through a well-used hole in the border fence. And these were not entirely South Americans who had struggled across dangerous jungle paths with a small bundle on their backs, but now included many well-to-do Chinese with rolling luggage who flew from China to Mexico, then took an Uber to the point of illegal entry. (The location of the well-used hole in the fence was posted on their mobile phones.)


According to the CBS estimate, up to 25% of the people who ducked through the fence hole were Chinese. Some indicated their total expense for the trip to that hole in the wall was $14,000!


The Immigrants poured in without challenge. A uniformed and armed U.S. Border Control officer stood by and monitored the process.  When asked why the government did not fix the hole in the fence, he replied, "we don't have the money.“ (If that were true, Biden should write a personal check, non?  Or, was the border guard a secret MAGA adherent? I doubt it.)


The illegal entrants were lined up, filed into passenger vans, asked some preliminary questions, given a date for their immigration hearing, and then released. There is no evidence that anyone tracked where they went, and there was no evidence as to what percentage of such aslyum-seekers actually show up months or years later at their scheduled hearings before immigration judges. 


The CBS reporter’s questions, on film, produced responses that made it eminently plain that many of the illegal entrants had no legitimate claim to asylum status based on a need for humanitarian protection. Those who said they were coming here because "the economy was better" should, IMHO, have been turned back instantly, or at least incarcerated until their hearings. The system was designed to accommodate people whose lives were in danger, not those who wanted a better job. And as to the Chinese, what to do with those rejected at their hearings given the fact they cannot be deported back to China because China will not accept them?


There is, of course, a legitimate way to seek asylum in the United States. There are two points of entry where an asylum claimant needs to go. However, an appointment is required, and that is available only via computer. But the government URL is spotty, and even if one manages to acquire a connection, the wait for an appointment is measured in months.


We should be clear: the Senate was, until Trump interfered, prepared to vote on a bipartisan immigration bill that presumably would fix some of the defects in current immigration procedure. But the Republican Speaker of the House has made plain the bill is dead on arrival. Why? The House rejects it because Republicans have stated publicly the passage of any bill will be another victory for Biden, and that is not acceptable to the Trumpers in an election year. Now that’s patriotism. 


Shame on Congress, and shame on us for electing them. The system is broken, and the electorate needs to install a Congress devoted to improving our democracy, instead of improving the Republicans' ability to dismantle it.


Whew! I'm sure glad the Kelce/Swift psy-op developed by the Biden CIA will produce a Kansas City victory in the Super Bowl and enough of Swifty's 11-year-old voters to defeat Trump in November. Otherwise we’d be in deep shit,


A bientot.

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27 January 2024

CIVIL WAR II ?


THE GOVERNOR OF TEXAS HAS ANNOUNCED THAT HE WILL NOT COMPLY WITH THE SUPREME COURT’S RULING THAT THE NATIONAL GOVERNMENT HAS THE LAST WORD WITH RESPECT TO THE IMMIGRATION PROCESS. 

THE STATE OF TEXAS HAS ERECTED RAZORWIRE BARRIERS OVER AREAS IT DOES NOT RIGHTLY CONTROL AND THE RECENT RULING BY THE SUPREME COURT AUTHORIZING THE FEDERAL GOVERNMENT TO REMOVE THOSE BARRIERS HAS ELICITED AN UNAMBIGUOUS RESPONSE FROM GOVERNOR ABBOTT. HE HAS TOLD THE COURT, IN EFFECT “GO STUFF IT,” AND NOT ONLY SENT ARMED TEXAS OFFICERS TO PROTECT AND DEFEND HIS RAZORWIRE BARRIER, BUT SUGGESTED OTHER BORDER STATES SEND TROOPS TO SUPPORT THE TEXANS.

Meanwhile, the Republicans in the House refuse to cooperate in passing an immigration bill that might alleviate some, if not much, of our current immigration mess. Why? More un-American activities: Republican Senator Mitt Romney has revealed that candidate Trump has instructed the Republican House leadership not to cooperate on any immigration bill, lest President Biden get some credit for it in the forthcoming election.

On a brighter note, my alma mater law firm Paul, Weiss, Rifkind, Wharton & Garrison has commenced a pro bono suit on behalf of the city of New York against 17 bus companies that have participated in Abbott’s ugly scheme to use immigrants as political chess pieces. Abbott has loaded them onto chartered busses and dumped them in or about New York City.

The Paul, Weiss team unearthed an 1831 New York State statute making it a misdemeanor for anyone  

“to cause to be brought …any poor or indigent person from any place without this state, into any county or town within it, and there to leave… such person with intent to make such county or town chargeable with the support of such pauper… ”

The statute was upgraded in 1942 to read:

“Any person who knowingly … causes to be brought a needy person from out of the state into this state, for the purpose of making him a public charge… shall be obligated to convey such person out of the state or to support him at his own expense.”

At the beginning of this year, providing care for some 33,600 people transported by the 17 bus companies hired by the Texas governor has cost the city $708 million dollars.

Subsequent to the filing of the suit, the flow of immigrants into the city has been reduced somewhat, though it is not clear whether that is the result of the litigation or the weather. In any event, Bravo to the PW lawyers who dug up the statutes and framed the legal attack,

The question remains: if Texas does not comply with a decree from the Supreme Court of the United States, what is the likelihood the bus companies chartered by the state of Texas will readily comply with a decree from the Supreme Court of the State New York?

The federal Supremes have brought this disrespect upon themselves. They have disgraced the court by placing politics and greed above law and ethics. There is only one solution: as I have preached over and over again: if we can hold the country together until January 2025, and we have a Democratic House, Senate, and President, then we can promptly add four justices to the Supreme Court and get back on the road to the Democracy foreseen by our Founding Fathers.

I can't close this piece without repeating here my favorite line of the week.  In Heather Cox Richardson's recent piece she quotes Joyce White Vance:

"How do you explain to your kids that you’re going to give your vote in the presidential race to a man who forced his fingers into a woman’s vagina and then lied about it and about her, and exposed her to public ridicule and harm?”


A bientot.

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11 January 2024

A SUPREME TEST

 Today's paper is chock full of details reporting on the Trump claim in the District of Columbia Court of Appeals that he is immune from criminal prosecution for his conduct while president because he was not convicted by the Senate of any impeachment charge brought by the House. ( A victory on that defense would have a serious effect on all the criminal claims brought against Trump by Jack Smith, as well as those pending in the state court of Georgia.)


The basis for the immunity defense lies in Article I, section 3 of the Constitution:


Judgment in cases of impeachment shall not extend further than to removal from office, … but the party convicted shall nevertheless be liable and subject to indictment, trial, judgment and punishment, according to law.”


I am familiar with the defensive claim because 50 years ago we raised it on behalf of sitting Vice President, Spiro, T Agnew. As I wrote in my memoir:*


"That paragraph certainly suggests that the party convicted by the Senate after impeachment by the House, could then be "subject to indictment…" That's a pretty powerful argument that the criminal indictment comes only after impeachment, but it's hardly conclusive. The word "then" is nowhere found in that clause of the Constitution, though we argued that it was implied.”


Based on that argument, we moved the court for a dismissal of the tax and bribery indictment of the sitting vice president. The government’s responsive brief, signed by Solicitor General Robert Bork, described the defense as "momentous and difficult” but nevertheless concluded that the Constitutional clause applied only to a sitting president, and not to a vice president, though they had both been elected on the same ticket, and received the same number of electoral votes. 

Bork’s rationale, in effect, adds to the overwhelming arguments against the Trump immunity claim. Bork concluded that a sitting president could not be indicted because of the weight of duties he had in managing the country’s national and international affairs whereas a sitting vice president had no such responsibilities, and therefore could be indicted, even though he had not been impeached.


 Bork was clearly wrong in suggesting a sitting President had a Constitutional immunity defense, but even applying his over-generous rationale to the current matter makes it plain that a former president, who obviously has no duties in the management of the country’s affairs, has no immunity whatsoever.


Our Agnew motion was never decided by a court. The government had other problems regarding serious leaks which led to a court decision giving us the right to depose government officials and members of the press. The pressure on Attorney General Elliot Richardson was so great that he agreed to a plea deal in which the vice president pleaded nolo contendere, resigned, and was guaranteed that the sentence would be a small fine.


Whatever its strength or weakness, the Agnew defensive immunity claim was about substance. The current Trump immunity defense is not about substance, but is about delay. I expect the District of Columbia Court of Appeals to make a prompt decision. I expect Trump then to seek an en banc hearing, which I expect will be promptly denied. In the end, the matter, will go to the Supremes and the real question there is how long will it take them, one way or another, to affirm the District Court decision and allow Judge Chutkan to try the case? 


Will the trial go forward before November 5, 2024? Or will the Supremes kick the can down the road and disgrace themselves once again?


A bientot.

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*My memoir is entitled “The Client Decides” and is available on
Amazon and Kindle.

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21 December 2023

THE COLORADO DECISION IS CORRECT AND THE SUPREME COURT SHOULD REVERSE IT

This Supreme Court is a disgrace. When it wants to, it asserts that it relies on "originalism" (what the founders meant when they wrote the words) or "textualism" (the plain meaning of the text as written). When the majority of the court doesn't like the result produced by that method, it simply ignores those concepts, or sometimes misstates the facts, or just creates new decisional principles. (Dobbs is a perfect example.)

Additionally,  in order to secure confirmation of their positions on the court, at least half of the conservative wing has misled Congress and the public about their respect for precedent. Add to that their insistence on the prerogative of not being bound by the code of ethics binding on all other federal judges, and their failure to modify that position by adopting a meaningful ethics code for themselves. At least one, possibly two of their number have accepted gifts they shouldn't have accepted and then failed to report them, as the rules required. Moreover at least one of these judges has refused to recuse himself when it was clear that he and/or his spouse had an interest in the outcome of the case.

As a result, this court has the lowest public standing of any in my lifetime. They are on the brink of constitutional catastrophe. Almost 200 years ago, President Jackson commented about a Supreme Court decision involving a state's land claims,  "John Marshall has made his decision now let him enforce it." Watch out Messrs. Thomas, Alito, et, al. lest you bring the court (and our country) to its knees.

What has this to do with the recent decision by the Colorado Supreme Court to ban Donald Trump from running for president in 2024?

 Everything.

Trump, naturally enough, has appealed the 4-3 decision to the Supremes. That court has the option of taking the appeal or not. If they were true textualists or originalists, they would agree with the conclusion of the Colorado court and not take the appeal. There is no doubt that Trump was deeply and intensely involved in an attempt at insurrection. January 6 was not a sudden accident. It was part of a plan, and Trump was the leader. He did everything he could to force that march on the Capitol, and even tried to join it. Once it turned ugly, members of Congress barricaded themselves in their hiding holes, and the floors of the Capitol turned slippery with blood, Trump not only refused to use his power to stop the carnage, he spurred the rioters on and approved of their effort to hang the vice president. 

The 14th Amendment makes plain that anyone who had previously taken an oath of office of the United States, who has engaged in an insurrection, or given aid and comfort to those who have done so, shall not hold any office, civil, or military, under the United States." Trump clearly fits that definition.

There was no "due process" failure here. The Colorado District Court took detailed evidence respecting Trump's participation in the insurrection and effort to block the transfer of power to his successor chosen by the electorate.  The dissent -- that The President was not an "officer" of the United States and therefore the 14th Amendment did not apply to him, --is absurd.  There is no doubt but that the Colorado court got it right.  Were the Supremes to reject the opportunity to review the decision would relieve some of the negative opinion of the six conservative justices, three of whom were appointed by Trump. It would make them seem like real judges, doing real judicial work, and spike some of the criticism of this court.

But I suggest that the court should, in this case, employ the dishonest approach it has used with respect to other questions. This time it should ignore textualism and originalism, it should ignore the language of The Constitution, find (or manufacture, as they have done before) some procedural rule and thereby save our democracy by reversing the Colorado decision.

There are currently similar challenges in 16 states. There is no end to the legal issues involved in each decision. There will be due process issues, obvious political issues, state law procedural issues, and there is no way all of these states could reach a final conclusion before election day in November 2024.

Most important, the 2024 election would be a nightmare. The winner would not have been elected by the United States, but would've been elected by only some of the "United States", i.e., the ones that didn't ban a popular candidate from running. Having local state governments decide which candidates can run and which cannot run for president is as close to the definition of a Banana Republic as you can come. It certainly is not what the founders expected in 1787, or the drafters of the 14th Amendment in 1866, and it's not what the whole of this country expects for 2024. If the aim is to protect American democracy, having each state decide which candidates are eligible to run for president and which are not is directly contrary to that goal. A reading of the Constitution that yields such a result is antithetical to the best interests of the United States of America.

There are enough members of the Supreme Court who are practiced dissemblers and they should put those skills to work on this issue and find a way kill off this movement in Colorado and elsewhere. I have confidence in their ability to do so.

A bientot. 

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