Sunday, November 30, 2014

Patrolling the Boundaries Inside America // Robert Reich

Orinda, California wants to separate a child from her mother rather than pay to educate another one of `them'. - gwc

Robert Reich (Patrolling the Boundaries Inside America) 

"America is embroiled in an immigration debate that goes far beyond President Obama’s executive order on undocumented immigrants.

It goes to the heart of who “we” are. And it’s roiling communities across the nation. 

 In early November, school officials in Orinda, California, hired a private detective to determine whether a seven-year-old Latina named Vivian – whose single mother works as a live-in nanny for a family in Orinda — “resides” in the district and should therefore be allowed to attend the elementary school she’s already been attending there. 

 On the basis of that investigation they determined that Vivian’s legal residence is her grandmother’s home in Bay Point, California. They’ve given the seven-year-old until December 5th to leave the Orinda elementary school. 

 Never mind that Vivian and her mother live during the workweek at the Orinda home where Vivian’s mother is a nanny, that Vivian has her own bedroom in that home with her clothing and toys and even her own bathroom, that she and her mother stock their own shelves in the refrigerator and kitchen cupboard of that Orinda home, or that Vivian attends church with her mother in Orinda and takes gym and youth theater classes at the Orinda community center."

Food stamp reform should go beyond fraud - The Portland Press Herald / Maine Sunday Telegram

Our View: Food stamp reform should go beyond fraud - The Portland Press Herald / Maine Sunday Telegram:
The LePage administration’s suggestions for reforming the federal food stamp program, outlined in a letter sent last week to Maine’s Congressional delegation, would help deter fraud. The question is, how would those reforms impact the tens of thousands of Mainers for whom food stamps provide critical support? 
As the use of food assistance program slowly contracts from an all-time high of two years ago, the Department of Health and Human Services must make sure that Mainers are leaving the rolls because they no longer need the help, not because the state cut them off unnecessarily.  Some of the changes to the supplemental nutrition program recommended by DHHS Commisioner Mary Mayhew would have little downside, but don’t adress the underlying problem of hunger. 
Many of the reforms in the letter, written by DHHS Commissioner Mary Mayhew, have little or no downside. Limiting the use of food stamps in purchasing junk food, for instance, is in line with the program’s aim of providing nutrition to needy families. As long as the cost of implementation is not too high, it makes sense.  

Likewise the suggestion to restrict the number of replacement electronic benefit transfer cards an individual can request as well as to make it easier to investigate card traffickers and fraudulent retailers. Those reforms can be put in place without harming the recipients who obey the rules. Not mentioned in Mayhew’s letter but also needing attention are cardholders who are inactive but still receiving benefits, or who are carrying large balances. Both cases are clear waste, and both can easily be tracked and dealt with under current laws and policies. But DHHS also supports reforms that have been shown to be damaging, not because of their stated intent but how they play out in practice."
But DHHS also supports reforms that have been shown to be damaging, not because of their stated intent but how they play out in practice.
Take for example the state’s efforts to place photos on EBT cards, a measure that provides an extra level of security, however thin.
The photos are voluntary, but DHHS has not gone out of its way to make that clear, using language in statements and department literature that make the photos seem mandatory. That confuses both recipients and retailers, and can act as a barrier for people using their legally obtained benefits. The same can be said for reinstating the work requirement, which forces childless, able-bodied people age 18 to 49 to work or volunteer in order to receive benefits.
Again, the impact is small – only 5 percent of food stamp recipients in Maine fit that criteria, and many of them already work – but the aim is proper.

In other states that have reinstated the work requirement, however, food stamp recipients are losing benefits not because they aren’t working, volunteering or receiving training, but because they don’t correctly document those actions. They are technical violations, not ethical or legal ones.
Those policies, the photo IDs and the work requirements, can in the right circumstances keep a recipient from trading a card for drugs, or push a recipient to find work. But they can also keep honest Mainers facing tough times – the vast majority of food stamp recipients – from getting the sustenance they need.
Gov. LePage should recognize that the proposals, however prudent, are aiming to tighten a system that is already remarkably tight, and take steps to make sure legitimate recipients are not unduly harmed. As the administration attempts to, in Mayhew’s words, “ensure the integrity” of the system, it must recognize that includes helping the law-abiding just as much as rooting out the law-breaking.
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Punitive home demolitions are racist — and just plain wrong | +972 Magazine

Punitive home demolitions are racist — and just plain wrong | +972 Magazine: "By Michael Schaeffer Omer-Man |Published November 19, 2014 Punitive home demolitions are racist — and just plain wrong Law abiding societies do not exact punishment on uninvolved parties. And it certainly doesn’t look good when the families of Palestinian terrorists are harmed while the homes of Jewish terrorists are left standing. One such punitive demolition leaves nine innocent people homeless Wednesday morning."

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The Supreme People’s Court speaks out on reforming China’s death penalty | Supreme People's Court Monitor

The Supreme People’s Court speaks out on reforming China’s death penalty | Supreme People's Court Monitor
by Susan Finder

The top story in the Supreme People’s Court Wechat Feed of 23 November–how China should reform the use of the death penalty. Over the weekend, a conference was held by China’s Academy of Social Sciences on the death penalty, which brought in the Supreme People’s Court, Supreme People’s Procuratorate, and other government departments, as well as experts from Tsinghua University, China University of Political Sciences and Law, and others. Among the topics discussed was China and the world.
Hu Yunteng, head of the Court’s Research Office  said that death penalty reform needs to focus on how to use legislative and judicial measures to reform the death penalty, with further work needed on the following:
  • Reducing the number of crimes that carry the death penalty.
  • Reducing the judicial use of the death penalty.
  • Amending substantive law to reduce its use.
  • Amending procedural law to control its use.
  • Adopting a hearing centered procedure in death penalty review cases.  This includes the making use of the important role of lawyers in the death penalty review process and providing legal assistance to those who need it. (This development was highlighted in this blogpost).
Judge Hu stated that the death penalty will be retained, but the goal is for the death penalty to be applied 100% correctly and to avoid mistaken cases.
Foreign and international organizations have been working with Chinese counterparts on death penalty reforms for a number of years.  In China, law reform efforts may involve a long incubation period.
The world awaits the results of the hard work needed to implement these reforms.
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Writing a Persuasive Introductory Statement - Appellate Law NJ Blog

An exemplary introductory statement - Appellate Law NJ Blog:
by Bruce D. Greenberg

Moran v. Board of Trustees, Police & Firemen’s Retirement System, ___ N.J. Super. ___ (App. Div. 2014).  

This appeal was by a firefighter who sought an accidental disability retirement pension under N.J.S.A. 43:16A-7.  Here is the first paragraph of Judge Reisner’s opinion for the Appellate Division yesterday, minus the final sentence of that paragraph:
James Moran, a firefighter, heroically saved two victims from a burning building by kicking in the building’s front door.  Although Moran suffered disabling injuries in this incident, the Board of Trustees of the Police and Firemen’s Retirement System (Board) denied his application for an accidental disability retirement pension.  Applying Richardson v. Board of Trustees, Police and Firemen’s Retirement System, 192 N.J. 189, 212-13 (2007), the Board found that Moran’s disability was not due to a traumatic event within the meaning of N.J.S.A. 43:16A-7, because the incident was “not ‘unexpected and undesigned.’”  
After reading about this “heroic” firefighter, who “suffered disabling injuries” in “sav[ing] two victims from a burning building,” would you conclude, as the Board did, that the firefighter did not deserve an accidental disability retirement pension? 

Though Judge Reisner proceeded to go through a careful analysis of the statute and apply the appropriate standard of review (while referring again to the firefighter’s “heroic response to an undesigned and unexpected traumatic event [that] left him disabled”, the result was clear, and irresistible to virtually anyone, from her opening paragraph.  That parargraph concluded with the sentence “We disagree and reverse,” thereby announcing that plaintiff Moran would be awarded his pension. 

Now that’s an Introductory Statement for all of us who write appellate briefs to emulate.
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Flawed 1 World Trade Center Is a Cautionary Tale -

photo Todd Heisler//NY Times
I am one who long criticized the Twin Towers as too tall and too dull.  But my view changed when the hyperbolically named World Financial Center was built.  Half the height of the WTC towers, the massive buildings provided excellent angles and contrasts, creating a coherent composition.  No such thing is present with this new 1 Wold Trade Center with its stupid antenna to reach the ridiculous height of  1,776 feet. - gwc
Flawed 1 World Trade Center Is a Cautionary Tale -
by Michael Kimmelman
The observatory, with the wraparound, nosebleed views, is not finished. Almost half the office space isn’t leased yet. But a baker’s dozen years after Sept. 11, 1 World Trade Center is up and running.
“It’s not so bad,” offered an architect who has a window facing the building.
Alas, it is.
Like the corporate campus and plaza it shares, 1 World Tradespeaks volumes about political opportunism, outmoded thinking and upside-down urban priorities. It’s what happens when a commercial developer is pretty much handed the keys to the castle. Tourists will soon flock to the top of the building, and tenants will fill it up. But a skyscraper doesn’t just occupy its own plot of land. Even a tower with an outsize claim on the civic soul needs to be more than tall and shiny.
I find myself picturing General MacArthur in aviator sunglasses when I see the building. Its mirrored exterior is opaque, shellacked, monomaniacal. An abbreviated obelisk, the building rises to 104 stories atop a square, 20-story, concrete bunker, only partly disguised behind butterflylike louvered glass panels. The tower’s thick, chamfered corners produce octagonal floors and a facade of steep, interlocked triangles. From north, south, east and west, the building looks the same.
Many New Yorkers hated the twin towers, but their sculptured corners captured sunlight at dawn and dusk, creating immaterial ribbons of orange and silver that floated up toward the ether. The towers changed, depending on where you stood, at what hour. The space between them shifted, too; it opened or closed as you moved around the city.
One World Trade is symmetrical to a fault, stunted at its peak, its heavy corners the opposite of immaterial. There’s no mystery, no unraveling of light, no metamorphosis over time, nothing to hold your gaze. By comparison, Britain’s tallest tower, the 95-story Shard in London, by Renzo Piano, dissolves and shimmers as day passes into night. Screens cluster at the top to make a sharp point, completing the glacial spire. Immense, overlapping planes of extra-white glass give the building a prismatic, luminous transparency.

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When Whites Just Don’t Get It, Part 5 -

When Whites Just Don’t Get It, Part 5 -
by Nicholas Kristof
WE Americans are a nation divided.
We feud about the fires in Ferguson, Mo., and we can agree only that racial divisions remain raw. So let’s borrow a page from South Africa and impanel a Truth and Reconciliation Commission to examine race in America.
The model should be the 9/11 commission or the Warren Commission on President Kennedy’s assassination, and it should hold televised hearings and issue a report to help us understand ourselves. Perhaps it could be led by the likes of Presidents Bill Clinton and George W. Bush and Oprah Winfrey.
We as a nation need to grapple with race because the evidence is overwhelming that racial bias remains deeply embedded in American life. Two economists, Joseph Price and Justin Wolfers, found that white N.B.A. referees disproportionally call fouls on black players, while black refs call more fouls on white players. “These biases are sufficiently large that they affect the outcome of an appreciable number of games,” Price and Wolfers wrote.
If such racial bias exists among professional referees monitored by huge television audiences, imagine what unfolds when an employer privately weighs whom to hire, or a principal decides whether to expel a disruptive student, or a policeman considers whether to pull over a driver.
This “When Whites Just Don’t Get It” series is a call for soul-searching. It’s very easy for whites to miss problems that aren’t our own; that’s a function not of being white but of being human. Three-quarters of whites have only white friends, according to one study, so we are often clueless.

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California recognizes intra-firm privilege against current client //Legal Ethics Forum

Legal Ethics Forum: California recognizes intra-firm privilege against current client:
cross post from Legal Profession Blog, November 30, 2014
A decision issued last week by the California Court of Appeals, Second District, Division Three holds
The question before us is whether the attorney-client privilege applies to intrafirm communications between attorneys concerning disputes with a current client, when that client later sues the firm for malpractice. We conclude that when an attorney representing a current client seeks legal advice from an in-house attorney concerning a dispute with the client, the attorney-client privilege may apply to their confidential communications. Adoption of the so-called "fiduciary" and "current client" exceptions to the attorney-client privilege is contrary to California law because California courts are not at liberty to create implied exceptions to the attorney-client privilege. In the unpublished portion of the opinion, we hold that the exceptions to the attorney-client privilege embodied in Evidence Code sections 958 and 962 do not apply to the circumstances presented here. Accordingly, we grant in part the petition of Edwards Wildman Palmer LLP and Dominique Shelton for a writ of mandate, and remand to the trial court for further proceedings.
The court cites the Massachusetts and Georgia cases as well as the Chambliss law review article.
The client had retained the law firm to pursue an invasion of privacy claim against the Daily Mail. As the court noted
The relationship between [client] Mireskandari and the Firm was short lived and, for the most part, contentious.
The court rejected the suggestion that internal counsel and the client were "joint clients" of the firm
Shelton and Mireskandari were not joint clients for purposes of section 962. Shelton and Mireskandari did not retain the Firm "upon a matter of common interest." Mireskandari retained the Firm and Shelton to represent him in the Daily Mail case; Shelton consulted with in-house counsel not as a party to that action, but to obtain advice on how best to address Mireskandari's complaints about billing and his threats to hold the firm responsible for any damages he suffered. Mireskandari and Shelton were not co-parties; they did not employ the same attorney to oppose claims of an adversary or pursue a claim as joint plaintiffs; they were not represented by the same attorney in a business transaction.
The court vacated an order that had permitted discovery into the firm's internal communications.
Thank you to my former student Daniel Woofter for sending me the case. His article from the Georgetown Journal of Legal Ethics is cited in the opinion. (Mike Frisch)

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Ferguson Documents: How The Grand Jury Reached A Decision : The Two-Way : NPR

Ferguson Documents: How The Grand Jury Reached A Decision : The Two-Way : NPR:

The NPR story has links to key documents.  I find the Darren Wilson story implausible.  I don't believe that Michael Brown was attacking after the first shot was fired.  Just too unlikely. I am willing to assume that it started with Brown blowing Wilson off with an "F,,U" or the like.  But I don't believe the initial scenario - that Brown was first to use force - by closing the patrol car door on Wilson.  

The key witness #14 is led down the path by a police interrogator who is obviously setting up Wilson's defense.  Which doesn't mean it's true or untrue - just that the bias is noteworthy.

Wilson, on the other hand, is very well prepared as a witness, e.g. he recites all his options - mace (not armed), flashlight not available", same for club, Brown goes for the gun.  Really? from outside the car?

I am put off too by 6' 4" Wilson's `Hulk Hogan vs. five year old' depiction, and the demon charging the bullets as B.S. or the product of racist assumptions,

Finally it is not the job of the Grand Jury to separate "fact from fiction".  It is the job of the Grand Jury to find the existence of probable cause.  If two sides emerge from the facts there should be an indictment.  Wilson under competent cross examination would have been a very different witness than the one at a Grand Jury love-in.

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Friday, November 28, 2014

Sentencing Law and Policy: Texas Justice calls for state's death penalty to be abolished

Justice Tom Price, Texas Court of Criminal Appeals
Wow!  A chink in the armor of the state that executes more than the rest of the country combined.  The Court of Criminal Appeals is the State's highest.  - gwc
Sentencing Law and Policy: Texas Justice calls for state's death penalty to be abolished

"As reported in this local article, "Texas Court of Criminal Appeals Justice Tom Price on Wednesday denounced the death penalty, saying that Texas' 2005 life without parole law makes it unnecessary and that the possibility of executing a wrongfully convicted person is an 'irrational risk' that should not be tolerated by the criminal justice system."  Here is more about this notable development which emerged in a legal challenge to a notable planned execution: 
 The Dallas Republican's comments, thought to be the first time such views have been voiced by a judge on the state's highest criminal appeals court, came in a strongly worded dissent to the court's Wednesday rejection of an appeal on behalf of Scott Panetti, a Fredericksburg double-killer said to suffer from schizophrenia.  Panetti, 56, is scheduled to be executed next Wednesday. 
 "Based on my specialized knowledge of this process," Price wrote, "I now conclude that the death penalty as a form of punishment should be abolished because the execution of individuals does not appear to measurably advance the retribution and deterrence purpose served by the death penalty; the life without parole option adequately protects society at large in the same way as the death penalty option; and the risk of executing an innocent person for a capital murder is unreasonably high, particularly in light of procedural-default laws and the prevalence of ineffective trial and initial habeas counsel.""

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As China Cracks Down on Dissidents, It Also Promises Legal Reform - China Real Time Report - WSJ

As China Cracks Down on Dissidents, It Also Promises Legal Reform - China Real Time Report - WSJ:

by Stanley Lubman

 "There is no doubt that legal reform in China will be carried out under the control and leadership of the Communist Party— while the repressive crackdown on speech and conduct threatening party rule is continues.  Legal reform was addressed in a lengthy document issued last month by the Central Committee of the Chinese Communist Party after the conclusion of its latest meeting, known as the Fourth Plenum. 
Earlier this year, pilot projects have begun to test some useful reforms that could strengthen the judicial system. The plenum document, known as the Decision,  does suggest–even if in generalities–positive progress by addressing judicial selection, establishment of circuit tribunals, improvements in judicial procedure and reform of the system for accepting lawsuits known as the “case filing system.” 
 The Decision places significant emphasis on reducing the power of local governments over basic-level courts.  It calls for the appointment of lower court judges to be made at the provincial level instead of by local officials.  “Selection  systems” are to be established, but it is unclear how they would be chosen and by whom.  
Before the Fourth Plenum took place there was some discussion of provincial “judicial selection committees,” being established.  Such a move, if successful, could reduce the influence of lower-level governments on the local courts, which is often referred to as an example of “horizontal” guanxi, or connections.   Even if the system of provincial appointments is established, the question remains of what kinds of extra-legal influences could be exerted downward on the lower courts. 
 The Decision also calls for the establishment of circuit tribunals of the Supreme People’s Court that would adjudicate cases that involve more than one province. Perhaps one of the more important provisions in the Decision calls for reform of the “case filing” system in the courts.  Currently, when a prospective litigant seeks to initiate a lawsuit, the documents must be presented to the case filing division at the court. That office decides whether to accept the case as suitable for subsequent adjudication or reject the case without adjudication, thereby depriving the litigant of the right to a hearing.  The Decision provides for elimination of this practice and for changing the procedure to a “case registration” system."

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SCOTUSblog on camera: Eric Schnapper (Part six) : SCOTUSblog

This is the last in a series of interviews with Eric Schnapper, who for twenty five years represented the NAACP LDEF in the Supreme Court. Conducted by Fabrizio di Piazza, they were posted on Scotusblog in November 2014. He was also the source of advice to many lawyers.  In this interview he emphasizes the value of experience before the court.  But everyone who will argue there has to have a first time.  I have a good story to tell about him that will wait for another day. - gwc
SCOTUSblog on camera: Eric Schnapper (Part six) : SCOTUSblog:
 "Stories from a career of Supreme Court advocacy; what one learns about necessary skills and the value of experienced counsel; and just how hard it is to explain how different Supreme Court advocacy is from anything else a lawyer does. “Just the way they say, ‘Battle plans never survive contact with the enemy,’ oral argument plans never survive contact with the Court.” 
 In this six-part interview, Eric Schnapper — Supreme Court advocate and holder of the Betts, Patterson & Mines Professorship in Trial Advocacy at the University of Washington School of Law — discusses his background, from Yale Law School to a twenty-five-year career at the NAACAP Legal Defense Fund to legal academe; how Supreme Court advocacy differs from other legal advocacy; the importance of legal briefs and their relation to oral argument; what one can and cannot prepare for in oral argument; and stories and what one learns from a long career as a Supreme Court advocate."

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Thursday, November 27, 2014

Concluding Thoughts: Administrative Reform of Immigration Law

Symposium on the Administrative Reform of Immigration Law (Balkinization - all posts)

Balkinization: Concluding Thoughts: Line Drawing, the Separation of Powers, and the Responsibilities of the Political Branches:

by Adam Cox and Cristina Rodriguez

There is widespread agreement that the Executive Branch may exercise prosecutorial discretion in individual cases, incorporating humanitarian factors and efficiency concerns into its judgments about which cases to pursue. And there is nearly universal agreement that the President may not decline to enforce the law, or “rewrite” Congress’s laws, to put it in terms used by OLC. But the vast space between these two poles is where the debate over the President’s initiatives lies. Over the last several days—both on this blog and around the nation—that debate has crystalized around four central questions concerning the legality of the administrative relief laid out by President Obama last Thursday.

(1) To be lawful, must relief be closely tied to statutorily articulated congressional priorities?

(2) Is it permissible for prosecutorial discretion to be exercised “categorically,” or must it proceed on a “case-by-case” basis?

(3) Does the fact that the President’s actions extend a benefit—work authorization—rather than just withhold a sanction affect their legality?

(4) Is the relief simply too big in scope to constitute a lawful exercise of prosecutorial discretion?

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U.S. and China: Public Health in the Shadow of the First Amendment

 Americans with rare exception tout freedom of speech as a virtue of the highest order.  Communists are lambasted for putting the collective over the individual.  But when a corporation is treated as an person - as the United States Supreme Court does - the results may be less than admirable.

Thus as the call to a recent Yale conference puts it public health now labors under the shadow of the First Amendment:
The regulation of food, medicines, and tobacco all rely crucially today on the regulation of speech, for example through behavioral marketing, disclosures, and restrictions on certain modes of commercial promotion.  First Amendment doctrine has recently changed in significant ways, bringing it into potentially deep tension with such measures.  For example, commercial speech doctrine has been used to invalidate FDA restrictions on off-label marketing of drugs, to prevent graphic warnings on cigarette packages, and to challenge calorie disclosures in restaurants.

In China on the other hand the State Council (the highest decision-making body of the state) has announced that it intends to ban all tobacco advertising and sponsorships, and to ban smoking in public places except in designated smoking areas. 
But this is not a decree.  Rather it has been offered for review and discussion.  When proffered as legislation there will be a public comment period, which could yield amendment or phase-in as the public health education campaign proceeds.  Below is my rough translation:
  据 国务院 法制 办公室 网站 消息 , 卫生 计生委 日前 起草了 《 公共 场所 控制  吸烟 条例 ( 送审 稿 )》( 以下 简称 送审 稿 ), 向 社会 公开 征求 意见 。 送   审 稿 明确 , 全面 禁止 所有 的 烟草 广告 、 促销 和 赞助 。 

A news release on the website of the State Council Office of Legislative Affairs says the National Health and Family Planning Commission recently drafted "Public places - control  of tobacco smoking regulations (tentative draft)"  for public discussion.  The draft specifies comprehensive prohibition of  all tobacco advertising, sales promotion and sponsorship. 

  送审 稿 要求 , 所有 室内 公共 场所 一律 禁止 吸烟 。 此外 , 体育 、 健身 场 馆 的 室外 观众 坐席 、 赛场 区域 ; 公共 交通 工具 的 室外 等候 区域 等 也 全面 禁  止吸烟 。The draft requires - prohibit  smoking   in all indoor public places.   In addition, athletic facilities, gyms and outdoor stadiums,  playing fields; at public transportation outdoor waiting areas smoking is also completely prohibited.

   送审 稿 规定 , 风景 名胜区 、 文物 保护 单位 、 公园 、 游乐园 等 一些 公共  场所 的 室外 区域 可以 设立 吸烟 点 , 吸烟 点 以外 的 区域 禁止 吸烟 。 没有 设立  吸烟 点 的 公共 场所 室外 区域 属于 全面 禁止 吸烟 的 场所 。
The draft specifies that scenic areas, cultural heritage sites, parks, amusement parks, etc. and certain  other outdoor public areas could designate smoking areas, outside those areas smoking would be prohibited.  In all other public areas not designated as smoking areas  tobacco smoking is forbidden.
   送审 稿 明确 , 禁止 吸烟 场所 ( 区域 ) 的 经营者 、 管理者 在 禁止 吸烟 场所 ( 区域 ) 不得 放置 烟具 和 设置 烟草 广告 。 对 违法 吸烟 行为 予以 劝阻 , 对 不听 劝  阻 的 要求 其 离开 。 对 不听 劝阻 且不 离开 的 , 向 有关 监督 管理 部门 举报 ; 对  不听 劝阻 并 扰乱 公共 秩序 的 , 向 公安 机关 报案 。
The draft states, in a posted non-smoking area a business operator  or manager of a non-smoking area must not provide smoking paraphernalia or set up  a tobacco advertisement. One who  despite demand unlawfully smokes  must leave the area. If a person after demand does not leave the area it shall be reported to the supervising authority; such refusal offends public order, and is a matter for the police. 

 I am sure that the state council is confident that - unlike the U.S. where a conservative federal circuit court held found graphic cigarette pack warnings violate tobacco companies' free speech rights - once enacted into law no Chinese court will order a retraction of  such a public health measure.  So in this regard which is more democratic - the U.S. or the `nanny state'P.RC.?

Malarkey on the Potomac: Five Bedrock Washington Assumptions That Are Hot Air | Common Dreams | Breaking News & Views for the Progressive Community

Malarkey on the Potomac: Five Bedrock Washington Assumptions That Are Hot Air | Common Dreams | Breaking News & Views for the Progressive Community

"Consider the following claims, each of which in Washington circles has attained quasi-canonical status. 

* The presence of U.S. forces in the Islamic world contributes to regional stability and enhances American influence. 
 * The Persian Gulf constitutes a vital U.S. national security interest. 
 * Egypt and Saudi Arabia are valued and valuable American allies. 
 * The interests of the United States and Israel align. 
 * Terrorism poses an existential threat that the United States must defeat. 
For decades now, the first four of these assertions have formed the foundation of U.S. policy in the Middle East. The events of 9/11 added the fifth, without in any way prompting a reconsideration of the first four. On each of these matters, no senior U.S. official (or anyone aspiring to a position of influence) will dare say otherwise, at least not on the record. Yet subjected to even casual scrutiny, none of the five will stand up.  To take them at face value is the equivalent of believing in Santa Claus or the Tooth Fairy -- or that John Boehner and Mitch McConnell really, really hope that the Obama administration and the upcoming Republican-controlled Congress can find grounds to cooperate."

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Wednesday, November 26, 2014

What do the newly released witness statements tell us about the Michael Brown shooting? | PBS NewsHour


What do the newly released witness statements tell us about the Michael Brown shooting? | PBS NewsHour:
In the grand jury case against Ferguson police officer Darren Wilson, the prosecution revealed that physical evidence weighed in Wilson’s favor and that he had not unlawfully shot 18-year-old Michael Brown to death.
Over the course of the investigation, federal agents interviewed dozens of witnesses—some compelled to come forward by subpoena—to piece together what happened on that August 9 afternoon. Shortly after the press conference announcing the jury’s decision, St. Louis County Prosecuting Attorney Robert McCulloch released the transcripts of interviews with witnesses and Wilson.
We read and analyzed more than 500 pages of witness testimony and compared each statement to those given by Wilson. Below is a chart comparing several key details of the officer’s report to the witness statements. Was Brown facing Wilson when he was shot, or was his back turned to him? Did Brown have his hands in the air, or were they reaching toward his waist?

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Law and Disorder in Ferguson | The Marshall Project

This post has many links to key documents for anyone who wants to write about issues arising from the Michael Brown slaying, particularly the role of the Prosecutor. - gwc
Law and Disorder in Ferguson | The Marshall Project
by Andrew Cohen
"Three months after it began its work, the grand jury in Ferguson, Missouri, chose Monday not to indict white police officer Darren Wilson for killing black, unarmed teenager Michael Brown last August. In this, the grand jury of nine whites and three blacks was no different from grand juries all over the country that previously have excused police officers following shooting deaths like this. Our nation’s legal standards, its broad definitions of the use of “deadly force,” make it extremely difficult for police officers ever to face criminal charges even when an unarmed citizen dies after an altercation like this."****

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Senator Rand Paul links Ferguson tragedy to harms of the modern drug war //Sentencing Law and Policy

Sentencing Law and Policy: Senator Rand Paul links Ferguson tragedy to harms of the modern drug war:
by Prof Doug Berman
Regular readers know I am always interested in Senator Rand Paul's distinctive perspective on criminal justice issues.  This new Time op-ed, headlined "The Politicians Are To Blame in Ferguson," has Senator Paul touching on broader themes as he connects recent events in Ferguson with his belief in the need for systemic reforms to the US criminal justice system. Here are excerpts:
We are witnessing a tragedy in Ferguson. This city in Missouri has become a focal point for so much. The President and the late Michael Brown’s family have called for peace. I join their calls for peaceful protest, but also reiterate their call to action — “channel your frustration in ways that will make a positive change.”
In the search for culpability for the tragedy in Ferguson, I mostly blame politicians. Michael Brown’s death and the suffocation of Eric Garner in New York for selling untaxed cigarettes indicate something is wrong with criminal justice in America.  The War on Drugs has created a culture of violence and put police in a nearly impossible situation.
In Ferguson, the precipitating crime was not drugs, but theft.  But the War on Drugs has created a tension in some communities that too often results in tragedy.  One need only witness the baby in Georgia, who had a concussive grenade explode in her face during a late-night, no-knock drug raid (in which no drugs were found) to understand the feelings of many minorities — the feeling that they are being unfairly targeted.
Three out of four people in jail for drugs are people of color.  In the African American community, folks rightly ask why are our sons disproportionately incarcerated, killed, and maimed?
African Americans perceive as true that their kids are more likely to be killed.  ProPublica examined 33 years of FBI data on police shootings, accounted for the racial make-up of the country, and determined that: “Young black males in recent years were at a far greater risk of being shot dead by police than their white counterparts — 21 times greater.”
Can some of the disparity be blamed on a higher rate of crime in the black community? Yes, but there is a gnawing feeling that simply being black in a high-crime area increases your risk for a deadly altercation with police.
Does bad behavior account for some of the interactions with law enforcement?  Yes, but surely there must be ways that we can work to prevent the violence from escalating....
Reforming criminal justice to make it racially blind is imperative, but that won’t lift up these young men from poverty.  In fact, I don’t believe any law will.  For too long, we’ve attached some mythic notion to government solutions and yet, 40 years after we began the War on Poverty, poverty still abounds.,,,
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Even Nancy Grace eviscerates the Darren Wilson prosecution, in 8 tweets - Vox

Update: not even Nancy Grace buys Darren Wilson's story.

You have to bring the usual racist assumptions to believe Wilson.  It is essentially that an 18 year old kid provoked an argument with a cop, then slugged him, then ran back to attack the cop who had already shot once from inside his car, then chased after the kid who turned to charge the cop "like a demon", who "didn't care" that the policeman was shooting at him.  How much do you have to believe to accept that story?  Versus the simpler story that this is a hot headed cop who got in an argument with a young guy and that rather than retreat the cop attacked the guy,and in a rage shot the guy who was actually freaked out by the gunfire, had his hands up and was surrendering.
Excellent points by Lisa Bloom.  As a former public defender I know how I would defend Michael Brown - and I know that I would never put him on the stand. Lisa Brown shows why. - gwc
A prominent legal expert eviscerates the Darren Wilson prosecution, in 8 tweets - Vox: "Following the grand jury decision in Ferguson, Missouri, prominent lawyer and MSNBC legal analyst Lisa Bloom argued on Twitter that St. Louis County prosecutors did a bad job questioning Ferguson Police officer Darren Wilson about the shooting of Michael Brown. She argued the questioning was basically a "tea party," far from the "grueling session" it should have been."

Lawrence O'Donnell reports that the Assistant Prosecutor incorrectly told the grand jury that Wilson had the right to shoot a "fleeing felon". gwc

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Bob McCulloch’s pathetic prosecution of Darren Wilson - The Washington Post

Bob McCulloch - St. Louis Prosecutor
Facts are properly determined by weighing and sifting and organized presentation,  The presentation by St. Louis County Prosecutor Bob McCulloch makes clear that he threw evidence at the wall, creating a kind of Jackson Pollock painting.  And inviting Darren Wilson to make a well rehearsed presentation.  Reviewing the transcript of his testimony shows it was an affair in which the target knew he was not the target. - gwc
Bob McCulloch’s pathetic prosecution of Darren Wilson - The Washington Post:
by Dana Milbank

"Ferguson reminds us that we still have a race problem in America. But the face of this problem is not Darren Wilson’s. It’s Bob McCulloch’s. Wilson, the Missouri police officer who shot and killed an unarmed black teenager, is the target of most public ire. But no responsible person thought Wilson’s killing of Michael Brown was premeditated. Even if prosecutors tried him on lesser charges of involuntary manslaughter, they might well have come up empty — and most people would have accepted that result of a fair trial. 
 What causes the outrage, and the despair, is the joke of a grand-jury proceeding run under the auspices of McCulloch, the St. Louis County prosecutor. In September, I wrote that it appeared he wasn’t even trying to get an indictment; he had a long record of protecting police in such cases, and his decision not to recommend a specific charge to the grand jury essentially guaranteed there would be no indictment. 
When McCulloch announced the inevitable result Monday night, he prefaced it by blaming the press and social media for whipping up emotions in the case with inaccurate information. He went on to ridicule witnesses who had given inconsistent testimony. He hid behind the grand jurors, as if he hadn’t orchestrated their decision with the finesse of conductor Christoph Eschenbach: “Anyone suggesting that somehow it’s just not a full and fair process is just unfair to these people” who “gave up their lives” to deliberate."

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It’s Long Past Time To Update The Thanksgiving Myth

It’s Long Past Time To Update The Thanksgiving Myth:
by Tim Weed (Tim Weed is the winner of a Writer’s Digest Popular Fiction Award
"From 1616 to 1619, a series of virgin-soil epidemics spread by European trading vessels ravaged the New England seaboard, wiping out up to 95 percent of the Algonkian-speaking native population from Maine to Narragansett Bay. The coast was a vast killing zone of abandoned agricultural fields and decimated villages littered with piles of bones and skulls. 
This is what the Pilgrims encountered when they landed at Plymouth Rock in 1620. Not a pristine wilderness, but the devastated ruins of a once-thriving culture, a haunting boneyard which English libertine Thomas Morton later described as a “newfound Golgotha.” 
 The collision of worldviews is almost impossible to imagine. On the one hand, a European society full of religious fervor and colonizing energy; on the other, a native society shattered and reeling from the greatest catastrophe it had ever known. 
The Puritans were forever examining their own spiritual state. Having come to America with the goal of separating themselves from polluted forms of worship, a great deal of their energy was focused on battling demons, both within themselves and at large in the world. Puritan clerics confused the Indian deity Kiehtan with God, and they conflated Hobbamock, a fearsome nocturnal spirit associated with Indian shamans, or powwows, with Satan.
Because of this special connection many Puritans believed that the powwows, and by extension all the New England Indians, were bound by a covenant with the devil. Indians thus became symbolic adversaries, their very existence a threat to the Englishmen’s prized religious identities."

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Does Ferguson Show That Cops Who Kill Get Off Too Easily? - Room for Debate -

Does Ferguson Show That Cops Who Kill Get Off Too Easily? - Room for Debate -
Discussion by Seth Stoughten - former police officer, Walter Katz, former PD, Erwin Chemerinsky - Dean UC Irvine, Kami Chavis Simmons - former federal prosecutor, Katherine Spillar - Feminist Majority, and Vincent Warren - Center for Constitutional Rights
The anger following the announcement that a Missouri grand jury chose not to indict a white police officer in the shooting death of an unarmed young man was not just set off by that one case. The F.B.I. reported 461 homicides by police officers last year, the most in two decades. Young black men are 21 times more likely to be among that number than young white men, according to ProPublica. But even when the slain are totally innocent, officers are hardly ever charged.
Does the infrequency with which police officers are held criminally liable in shootings show they are held to too low a standard, or that they face too much criticism in such cases?
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Tuesday, November 25, 2014

Reefer madness - how the Prosecutor sabotaged the case against officer Darren Wilson- Hit & Run :

Did Marijuana Kill Michael Brown? - Hit & Run :
...consider this exchange between Assistant Prosecutor Alizadeh and the toxicologist:
Prosecutor: Could you experience the hallucination and/or the psychosis if you had a high enough dose of THC?
Witness: If you got a high enough dose, you could have a psychotic episode into hallucinations, yes.
Prosecutor: Now, in this particular case, when you tested the blood and you got 12 nanograms per milliliter for the delta-9-THC, do you consider that a high dose?
Witness: OK—
Prosecutor: What conclusions did you make from that?
Witness: Well, you have to put things in perspective. This was a very large individual. I think he was about 300 pounds. So for concentration of 12 nanograms in a large person, that shows it was a large dose. In a small person, say like 100 pounds, to get to 12 nanograms wouldn't take a lot. A single joint could easily do that. But when you talk about a larger body mass, just like drinking alcohol, larger persons can drink more alcohol because they have the receptacle to hold it.
By conflating dose with blood concentration, this exchange implies that 12 nanograms of THC per milliliter will make a large person crazier than a small person, which makes no sense. If smoking a single joint can raise a 100-pound person's THC concentration that high, and if 100-pound people who smoke a joint do not commonly behave the way Wilson claims Brown did, why should we believe marijuana helps explain why Brown is dead? 
The prosecutors spent considerable time insinuating that Brown had consumed cannabis in the form of the concentrate known as "wax," even though there does not seem to be any evidence that he did and even though it would not matter if he had. If the issue is Brown's level of intoxication, the amount of material he burned to achieve it is irrelevant. The testimony about wax looks like an attempt to exoticize a familiar drug that people do not usually associate with demonic rage or Hulk-like strength.
Then again, marijuana my be exotic enough as far as the prosecutors are concerned. "You explained that the Delta-9-THC has a psychoanalytic effect?" Alizadeh said at one point. "Psychoactive," the toxicologist corrected her. Later Whirley asked, "Could this amount of THC that was found in the blood be—is it possible that someone [could be] ingesting that amount on a regular basis and not be dead?" The toxicologist explained that "marijuana really isn't lethal." 
Unless you smoke it before getting stopped by a cop, I guess.
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Officer Darren Wilson’s Grand Jury Testimony in Ferguson, Mo., Shooting -

Officer Darren Wilson’s Grand Jury Testimony in Ferguson, Mo., Shooting -
Officer Wilson's Testimony
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Officer Darren Wilson’s testimony before the St. Louis County grand jury stands out both for what he says, and how he describes what happened. He begins by noting his own size – nearly 6-foot-4, weighing around 210 pounds. Then he proceeds to explain why, in his view, the episode with Mr. Brown, whom he compares to a demon and Hulk Hogan, became violent.

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