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The Feds Go Stark Raving Mad

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A couple of days ago, I said that race mongering had gone stark raving mad, by comparing Martin Luther King unfavorably to sneering cop-killer Mumia Abu-Jamal.

Tonight I have to say that the federal government, my former employer, has likewise gone stark raving mad.  I refer specifically to its siege of Nevada rancher Cliven Bundy.

I don't know all the merits of the dispute.  I'll assume arguendo that the Bureau of Land Management is 100% correct in claiming that Bundy is poaching on federal land, by grazing his cattle there without paying.  

But this justifies a para-military siege?  Use of dogs on Bundy's unarmed son?  The stationing of snipers?

As John Hinderaker of Powerline writes, the use of that degree of force in a dispute of this character is essentially madness.  Do the people at BLM not remember the disaster at Waco, where the stakes (possibly children subject to on-going abuse) were incomparably higher? 

At the same time this Administration is falling all over itself to go easier on drug trafficking, with the rampant violence inevitably associated with it, it sends in a quasi-army to deal with a cattle rancher who won't pay up.



Good News and Bad News

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The good news is that, as the News Scan reports, Missouri went ahead with the execution of Jeffery Ferguson, who abducted, stripped, raped and strangled to death a teenage girl, Kelli Hall.  The better news is that it did so after courts, including the Supreme Court, rejected what is becoming the tiresome challenge that the state refused to identify the pharmacy that supplied the execution drugs.

The bad news is that it took 25 years to get this done.  Ferguson committed the rape and murder on February 9, 1989.

The other bad news is that there continues to be no visible limit on just how sick some criminals can be.  Hence this story from East Moline, Illinois.  It starts:

An Illinois playground was [booby]-trapped with straight-edged razors glued to equipment frequented by children, WQAD.com reported.

The sharp razors were discovered by parents at Millennium Park in East Moline, near the state's western border with Iowa. The parents say their 2-year-old son was cut by one of the blades on the monkey bars.

Here's betting dollars  to doughnut holes that if and when the guy who did this  gets caught, his defense lawyer will pony up for a rent-a-shrink whose opening paragraph will contain the word "bi-polar."  Any takers?

A New Defense Theory

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For those of you who thought the Twinkie Theory of defense was as outlandish as you were going to see, think again.

Mortgage Fraud, No Big Deal

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Mortgage fraud  --  that is, millions of non-credit worthy mortgage applicants lying about their income, assets and debt, and bankers turning a willfully blind eye to it  --  was the major cause of the housing crisis several years ago, and the ensuing financial collapse that ushered in the Great Recession.

The following massive destruction of wealth, lowered incomes, persistent high unemployment and slow growth during the so-called "recovery" have caused considerable suffering, particularly among the young looking for work.  My nephew, for example  --  a highest honors graduate of Duke this last May and a great kid  --  couldn't get a job until two months ago.

So you would think prosecuting mortgage fraud cases would be a front-and-center item for the Justice Department, right?

Think again.


IP and in re Winship

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A bedrock principle of American constitutional criminal law is that the prosecution must prove every element of an offense beyond a reasonable doubt.  And while not every piece of evidence introduced by the state must meet this heavy burden, an interesting question is whether a jurisdictional element not explicitly provided in a copyright statute must also satisfy this burden. 

Will Baude over at the Volokh Conspiracy points to an interesting new paper by law professor Irina Manta that makes an innovative constitutional argument about copyright prosecutions and the jurisdictional element.  The abstract provides the details:

Our current methods of imposing criminal convictions on defendants for copyright and trademark infringement are constitutionally defective. Previous work has argued that due process under the Sixth Amendment requires prosecutors to prove every element of a crime beyond a reasonable doubt, including the jurisdictional element. Applying this theory to criminal trademark counterfeiting results in the conclusion that prosecutors should have to demonstrate that an infringing mark needs to have traveled in or affected interstate commerce, which is currently not mandated. Parallel to this construction of the Commerce Clause, criminal prosecutors would also have to prove that Congress has the power to reach individual copyright infringers under the Intellectual Property Clause. This presents little difficulty under the traditional understanding of the clause as prosecutors would only need to show that convicting a defendant serves to secure the rights of authors. Some contemporary scholars have argued, however, that the text of the Intellectual Property Clause must be understood to mean that Congress can only enact copyright legislation if it serves to promote progress. If this notion is correct and is combined with this article's theory of the requirements of the Sixth Amendment, prosecutors would have to prove that individual convictions will serve to promote progress before courts can impose sentences in given cases. While this could raise costs and has the potential to reduce the number of cases brought, prosecutors may have little choice but to introduce expert testimony to demonstrate an effect on progress, similar to the use of expert evidence in antitrust litigation and related contexts.

Well worth a read even for those of us unfamiliar with IP law. 
Is that "navigator" who is supposed to help you through ObamaCare enrollment, and who gets lots of personal information about you in the process, an honest and trustworthy person?

Maybe not.  National Review Franklin Center Fellow Jillian Kay Melchior appears in this video interview with some disturbing findings.

The Affordable Care Act and Fraud

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The federal anti-kickback statute is a criminal statute that prohibits the exchange (or offer to exchange), of anything of value, in an effort to induce (or reward) the referral of federal health care program business. It is an essential law in combating fraud, waste and abuse of precious federal healthcare dollars.  When a patient visits a doctor, there is a tremendous financial incentive for relationships to be established between various healthcare providers to refer and provide additional healthcare tests and procedures, many of which are often unnecessary.  One of the worst offenders of the spirit of the statute is the widespread use of "pod labs" by dermatologists, urologists and other physician groups.  Pod labs are usually backroom, unaccredited pathology laboratories in which the referring physician has a financial interest.  It is obvious to even the layperson to understand that such arraignments are ripe for abuse.  If the referring physician can make more money depending on how many pathology specimens he or she refers to her own laboratory, the temptation for fraudulent charges becomes immense.   Unfortunately, the average patient has no knowledge of these insidious arraignments nor the fact that their specimens are being analyzed in an unaccredited laboratory, often by a less than stellar pathologist.

One would expect that the Affordable Care Act would constitute a "federal health care program" and therefore would be covered by the anti-kickback statute.  But one would apparently be wrong.  The Pathology Blawg has the story:

[T]he Department of Health and Human Services (HHS) has determined the federal health care exchanges and health insurance subsidies for low income individuals under the Affordable Care Act (ACA) do not constitute a "federal health care program" and therefore the federal Anti-Kickback Statute (AKS) will not apply.

Thus, it seems that fraud prevention is not high on the list of imperatives for the Affordable Care Act.  This is of course strange insofar as healthcare costs are always touted as one of the primary reasons why we need healthcare reform.  Although as Robert Radick mentions in Forbes,"the precise logic behind Secretary Sebelius's decision is not yet clear."


Criminal Law Enforcement vs. the Free Press

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The Federalist Society had its usual excellent national convention last week.  Among the panels was one on "Criminal Law Enforcement vs. the Free Press."  It was moderated by the brilliant Judge Ray Randolph of the DC Circuit, and featured extremely knowledgeable speakers including Eugene Volokh of the "Volokh Conspiracy," Adam Liptak of the New York Times, and former Attorney General Michael Mukasey.  The latter did a superb job of pointing out the hypocrisy, and the danger, of the current Administration's high-minded talk about the need for robust (to say the least) NSA surveillance, combined with its leaking numerous, very sensitive items of national security information to improve its own sagging political standing.

The panel is here.

A second event very much worth watching is the discussion with Justice Clarence Thomas. Thomas confirmed what those of us with the privilege to be acquaintances of his have long known, to wit, that his intellect is surpassed only by his character.

The tape of the conversation is not yet available, but I'll post it when it is.

Veterans Day

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To all who have served in defense of our country and the cause of freedom, thanks.

Back to the Future NY Film Festival

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New York voters have forgotten their crime-ridden history and voted to condemn themselves to repeat it.  For a crystal-ball glimpse of the future via the past, Michael Anton in the City Journal has some movie suggestions.

Man Bites Dog

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Some crime stories are too good to pass up.

The Returning Citizen

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What is a "returning citizen"?

1)  Someone who just came back to earth from space (see, e.g., the movie "Gravity").
2)  Someone who just came back to the USA from his junior year abroad.
3)  Someone who just came back from crossing the ocean in a canoe. 

Sorry, you all got it wrong.  The answer is none of the above.

The Consequences of Unseriousness

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Q:  What happens when crime gets discovered, but no serious punishment ensues?

A:  It gets repeated.

And what happens when it gets repeated?  Read the story and see for yourself.

Should any of us wait to hear from the defendants' counsel how, in the case seven years ago, they were protecting the "vulnerable" from the sinister forces of the state? Who exactly  --  the prosecution or the defense  --  is being compassionate here? 

Criminal Defense, the Bracket Game

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No, I did not say, "Criminal Defense, the Racket Game."  That wouldn't be very nice.

Nor, to be honest, would it be fair.  The old fashioned criminal defense ("I didn't do it") has all but disappeared.  It's been displaced by, "OK, well, maybe I did do it, but you should let me off because I have ___ mental problem."  

You can put pretty much anything you want in the blank, because you can always hire a shrink to come up with something or other out of the Diagnostic and Statistical Manual. And if nothing there fits, just invent something. This will, in addition to enhancing the shrink's fee from the defense lawyer, get him invited to some academic symposium, where, despite the odds that otherwise would be imposed by common sense, he can get taken seriously. 

No, the Bracket Game is literally a bracket game.  In this game,competing "disabilities," real and fabricated, compete with one another to see which can glean you the Most Intimidating Claim to Moral Superiority, and thus the right to bully anyone who thinks the defendant might actually have some responsibility for what he does.  It's even more fun than the "I have ___ mental problem game."

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