Shamai Leibowitz | Pursuing Justice

Major Rulings of the Supreme Court's 2009-10 Term

2010-07-02T22:42:00.028-04:00

This week marked the end of Supreme Court's 2009-10 term. It was also the end of the John Paul Stevens era, as retiring Justice Stevens ascended the bench this week for the last time.

The end of the 2009-2010 term provides a good opportunity to summarize the important decisions handed down this term. Here is a brief summary of the major rulings:

Free Speech and Criminal Law:
United States v. Stevens: The Court struck down a law that prohibited the sale and marketing of depictions of animal cruelty, in a case that involved dog-fighting videos. The Court held that the law swept too broadly, infringing on First Amendment rights. See my previous discussion of the case here.
Majority-Minority: 8-1 (Alito dissenting).

Holder v. Humanitarian Law Project: The Court rejected a First Amendment challenge to a federal law that makes it a crime to provide "expert advice or assistance" to designated terrorist groups. Read my previous analysis here.
Majority-Minority: 6-3 (Ginsburg, Sotomayor, Breyer dissenting).

Campaign-Finance Regulation:
Citizens United v. Federal Election Commission: The Court declared that government cannot restrict corporate and labor union spending on political candidates, lifting the long-standing distinctions in campaign-finance law between corporations and individuals.
Majority-Minority: 5-4 (Stevens, Sotomayor, Ginsburg, Breyer dissenting; Justice Stevens wrote a forceful dissent and read it from the bench!).

Religious Symbols:
Salazar v. Buono: Reversing a lower-court decision against a federal law designed to keep a Christian cross in the Mojave National Preserve even after it was ruled a government endorsement of religion; the justices used a legal rationale that would strengthen the government's ability to keep religious symbols on public grounds.
Majority-Minority: 5-4 (Stevens, Sotomayor, Ginsburg, Breyer dissenting).

Criminal Law and Procedure:
Berghuis v. Thompkins: Declaring that once police have read a suspect his Miranda rights and questioning has beugn, it is up to the individual in custody to assert his right to remina silent. The case arose when a suspect declined to answer hours of questions, then blurted out an incriminating statement but claimed that he had wanted to remina silent and that the statement was not made voluntarily. The Court ruled against the defendant and held the statement admissible.
Majority-Minority: 5-4 (Stevens, Binsburg, Breyer, Sotomayor dissenting)

Maryland v. Shatzer: The issue was whether a detained suspect who has asked to speak to a lawyer can ever be questioned again without a lawyer present. In a 1981 case, Edwards v. Arizona, the Supreme Court held that when a detained suspect asks to speak with a lawyer, the police cannot try to persuade him to change his mind. They have to stop the questioning, and they cannot restart the questioning, even after time passes and the suspect has met with his attorney, unless the suspect reinitiates the questioning on his own. In this case, the issue was whether that rule continues to apply if the suspect has been released from police custody, and is then rearrested. The Court held there is a "14-day rule" meaning that investigators may resume questioning a suspect who invoked his Miranda right to a lawyer, once the suspect has been out of police custody for 14 days. The decision loosened the protection that court precedents had given to suspcts from repeated police pressure to talk.
Majority-Minority: 7-2 (Stevens and Thomas dissenting).

Skilling v. United States: Invalidating part of the fraud conviction of former Enron executive Jeffrey Skilling and finding that a law that makes it a crime to deprive the public or shareholders of the "intangible right to honest services" should apply only to bribery and kickbacks.
Majoriy-Minority: 9-0.

Black v. United States: Invalidating part of the fraud conviction of former media tycoon Conrad Black, based on the ruling in the Skilling case that "honest services" fraud applies only to acts of bribery and kickbacks.
Majority-Minority: 9-0.

United States v. Comstock: Upholding the constitutionality of the law that lets the government continue to imprison inmates who have finished serving their time, if they are deemed "sexually dangerous."
Majority-Minority: 7-2 (Scalia and Thomas dissenting).

Juvenile Sentencing:

Graham v. Florida: Ruling that the Eighth Amendment's ban on "cruel and unusual" punishment prohibits government in all cases from sentencing juveniles to life without parole for crimes other than murder. See my article published - Give Juveniles A Chance.
Majoriy-Minority: 6-3 (Scalia, Thomas, Alito dissenting).

Justice Stevens, in a blistering criticism of Justice Thomas, wrote: "While Justice Thomas would apparently not rule out a death sentence for a $50 theft by a 7-year-old, the Court wisely rejects his static approach to the law. Standards of decency have evolved since 1980. They will never stop doing so."

Business Law:
American Needle v. National Football League: Ruling that the National Football League is not shielded from antitrust liability when it contracts for the exclusive marketing of caps, sweatshirts and other team-logo merchandise, the justices rejected the NFL's arguments for a broad antitrust exemption.
Majority-Minority: 9-0.

Claims of Discrimination:
Lewis v. City of Chicago: The Court found that African Americans who challenged the city of Chicago's written exam for firefighter jobs did not wait too long to bring their claim of bias. The Supreme Court held that a plaintiff who does not file a timely charge challenging the adoption of a practice may assert a disparate-impact claim in a timely charge challenging the employer’s later application of that practice aslong as he alleges each of the elements of a disparate-impact claim.
Majority-Minority: 9-0.

Fourth Amendment:
City of Ontario v. Quon: The issue was whether a SWAT team member has a reasonable expectation of privacy in text messages transmitted on his SWAT pager, where the police department has an official no-privacy policy. While noting that it is well settled that the Fourth Amendment’s protection extends beyond the sphere of criminal investigations, the Court ruled that the California police department did not violate the Fourth Amendment privacy rights of the SWAT team member when it reviewed his text messages (some of which were sexually explicit) sent on a department-issued pager.
Majority-Minority: 9-0.

Death Penalty:
Magwood v. Patterson: The Court ruled in favor of a defendant convicted of a 1979 murder whose challenge to the Alabama state's death penalty law had been ruled untimely by lower courts. Magwood's first death sentence was overturned, but he was sentenced to death a second time. When Magwood filed a habeas petition challenging his new death sentence, the U.S. Court of Appeals for the Eleventh Circuit held that Magwood's challenge to his new death sentence was an unreviewable “second or successive” challenge since he could have brought the same challenge to his first death sentence. The majority said "because Magwood's habeas application challenges a new judgment for the first time, it is not 'second or successive.'" The Supreme Court decision allows Magwood to challenge his second death sentence as a brand new judgment, even if it raises issues that could have been made against the original sentence.
Majority-Minority: 5-4 (Kennedy, Roberts, Alito, Ginsburg dissenting).

Holland v. Florida: Ruling that a death row inmate should not lose his right to a federal appeal because his lawyer missed the 1-year deadline established under the 1996 Antiterrorism and Effective Death Penalty Act. See my article on this case here.
Majority-Minority: 7-2

Advocacy Is Not A Gun

2010-06-23T11:38:00.009-04:00

That is the title of an excellent commentary by Georgetown law professor David Cole, following the deeply disappointing decision of the Supreme Court in the case of Holder v. Humanitarian Law Project [full-text decision, pdf]. By a 6-3 majority, the Court ruled that a federal law, 18 USC s. 2339B(a)(1) which makes it a federal crime to "knowingly provide material support or resources to a foreign terrorist organization" is constitutional.

What is "material support"? The statute defines this term as follows:

“[T]he term ‘material support or resources’ means any property, tangible or intangible, or service, including currency or monetary instruments or financial securities, financial services, lodging, training, expert advice or assistance, safehouses, false documentation or identification, communications equipment, facilities,weapons, lethal substances, explosives, personnel, and transportation, except medicine or religious materials.”

The main issue was whether the government can criminalize those who engage in giving "expert advice or assistance" to organizations, when that advice or assistance is meant to teach members of those designated organizations to use non-violent means, including legal advocacy, to achieve their goals. In other words, does the attempt to wean people away from violence constitute a criminal act punishable by 15 years imprisonment?

Bowing to the government's pressure, the majority of the Court, led by Chief Justice John Roberts, held that the statute did not violate the plaintiffs' First Amendment rights to free speech and association, nor was it unconstitutionally vague in violation of the Fifth Amendment.

Justice Stephen Breyer filed a dissenting opinion, in which Justices Ruth Bader Ginsburg and Sonya Sotomayor joined.

This is a dangerous precedent, and a disturbing erosion of freedom of speech. As Professor Cole explains:

For the first time ever, the Supreme Court has ruled that the First Amendment permits the criminalization of pure speech advocating lawful, nonviolent activity. The court reasoned that it is conceivable that such speech might burnish a designated group’s image, and thereby “legitimize” it, and therefore Congress can make all such speech a crime.

In the past, the Supreme Court has ruled that the First Amendment protected even the right to advocate criminal activity, so long as one’s advocacy was not intended and likely to produce an imminent crime. And it ruled that citizens had a right to associate with a group engaged in both legal and illegal activities, as lone as they intended to further only the group’s lawful activities.

Today, by contrast, the court rules that speech advocating only lawful, nonviolent activity can be made a crime, and that any coordination with a blacklisted group can land a citizen in prison for 15 years.

Cole explains persuasively why this decision is counterproductive, and will have grave implications. It will hamper the efforts of those engaged in peace activism and in conducting negotiations intended to reduce violence:

The decision has deeply disturbing implications. It means that when President Jimmy Carter did election monitoring in Lebanon, and met with all of the parties to the election — including Hezbollah, a designated “terrorist group” — to provide them with his advice on what constitutes a fair election, he was committing the crime of providing “material support,” in the form of “expert advice.”
It means that when The New York Times and The Washington Post published op-eds by a Hamas leader, they were engaged in the crime of providing “material support” to a designated terrorist group, because to publish the op-ed they had to coordinate with a spokesperson from Hamas.

And it means that my clients, a retired judge and an established human rights group, cannot continue to work for peace and human rights without risking long prison terms.

Those who defend this law often focus on the provision of funds — not at issue before the Supreme Court — and argue that money is fungible, and can be used for any purpose.

But human rights advocacy is not fungible. It cannot be turned into guns and bullets. It is designed to persuade, not coerce. It is, in short, what the First Amendment is all about. But it is now a crime, and according to this Supreme Court, the First Amendment poses no obstacle to its suppression.

That the Court's conservative majority (with the addition of Justice Stevens) ruled in favor of the government is not really a surprise. In today's environment of fear, it is expected that judges will defer to the government, even when this means undermining basic constitutional rights. What is particularly disturbing is that Elena Kagan, Obama's nominee for the Supreme Court, enthusiastically argued this case for the government in her role as Solicitor General. This does not bode well for her future rulings as a Supreme Court justice.

Supreme Court Favors Fairness Over Finality in Death Penalty Case

2010-06-16T10:52:00.016-04:00

On June 14, the U.S. Supreme Court issued a just decision in the case of Holland v. Florida [pdf] ruling that a death row inmate should not lose his right to a federal appeal because his lawyer missed the 1-year deadline established under the 1996 Antiterrorism and Effective Death Penalty Act (AEDPA).

The Supreme Court, by a 7-2 majority, correctly reversed the Court of Appeals decision, stating that the appeals court's standard was too rigid, and that equity highly favors keeping the courthouse doors open for the petitioner to file his federal habeas corpus appeal.

Procedural History of the Case

The petitioner, Albert Holland, was convicted of murder and sentenced to death in a Florida state court. His direct appeals were unsuccessful, and the one-year limitations period under AEDPA (28 U.S.C. Section 2244(d)) began to run on October 1, 2001. Bradley Collins, the attorney appointed to represent Holland at the post-conviction stage, filed a motion for state post-conviction relief in September 2002, thereby tolling the limitations period and leaving Holland with approximately twelve days to file his federal habeas petition if his motion for state post-conviction relief was denied. The limitations period began to run again on December 1, 2005, when the Florida Supreme Court denied relief. Despite Holland’s frequent reminders, Collins failed to file a timely federal habeas petition. Moreover, he also failed to tell Holland that his efforts to obtain state post-conviction relief were unsuccessful. In January 2006, after the AEDPA limitations period had expired, Holland finally learned that the Florida court had denied relief; one day later, he filed a pro se federal habeas petition, which was approximately five weeks late under the 1-year statute of limitations set forth in AEDPA.

The lower court, the Court of Appeals for the Eleventh Circuit, ruled that his attorney's conduct in missing the deadline was not egregious enough to warrant setting aside the imposed deadline. The appeals court said that the attorney would have had to act with "bad faith, dishonesty, divided loyalty, or mental impairment" to be excused from the imposed deadline, and that gross negligence was not enough of a reason. And so the client must die because of a grossly negligent mistake made by his lawyer.

Supreme Court Favors Fairness Over Finality

The Supreme Court granted certiorari. In an opinion by Justice Breyer, the Court emphasized that the history of the writ of habeas corpus supports opposing the use of "mechanical rules" when exercising the court's equity powers.

The Court held that federal habeas corpus statute is subject to equitable tolling, and a petitioner is entitled to equitable tolling only if he shows --

(1) that he has been pursuing his rights diligently, and

(2) that some extraordinary circumstance stood in his way. Pace v. DiGuglielmo, 544 U. S. 408, 418 (2005).

In this case, the “extraordinary circumstances” at issue involve an attorney’s failure to satisfy professional standards of care. In interpreting "extraordinary circumstances," the Court of Appeals held that even attorney conduct that is “grossly negligent”can never warrant tolling absent “bad faith, dishonesty, divided loyalty, mental impairment or so forth on the lawyer’s part.”

But the Supreme Court rejected this view. The majority opinion held that the Court of Appeals standard is "too rigid" and it does not accurately reflect the principle of equitable tolling, straying from the ideals that govern equitable considerations. The Court explained the need for flexibility to prevent injustices:

In emphasizing the need for “flexibility,” for avoiding “mechanical rules,” we have followed a tradition in which courts of equity have sought to relieve hardships which, from time to time, arise from a hard and fast adherence to more absolute legal rules, which, if strictly applied, threaten the “evils of archaic rigidity.” The “flexibility” inherent in “equitable procedure” enables courts “to meet new situations [that] demand equitable intervention, and to accord all the relief necessary to correct . . . particular injustices.” [citations omitted]

The Court, inexplicably, stopped short of holding that Collins’s negligence amounted to the kind of “extraordinary circumstances” that would allow equitable tolling in Holland’s case. While not explaining in detail why exactly the Court of Appeals standard is "too rigid," the Court did indicate both that the record contained facts that were far more serious than “garden variety” attorney negligence, and that those facts “may well be” an extraordinary instance that would justify equitable tolling.

Relying on an amicus brief filed by a group of legal ethics teachers, the Court opined that the lawyer's conduct here "violated fundamental canons of professional responsibility." Why then is this not egregious enough to support equitable tolling and issue an order allowing the prisoner to file a federal habeas petition?

Justice Breyer and his colleagues in the majority were not courageous enough to say the obvious: That a lawyer ignoring a death row prisoner's repeated requests to file a habeas petition, and the lawyer's negligence to update the client as to the status of his case, are "extraordinary circumstances." Even while reaching a correct conclusion, the majority failed to lay down a bright-line rule that petitioners should not be denied access to habeas courts because of their lawyer's negligence. Unfortunately, the Supreme Court deemed it more appropriate for the lower courts to make a new factual determination in this case. Because the District Court erroneously relied on a lack of diligence by Holland, and because the Eleventh Circuit erroneously relied on an overly rigid per se approach, the Court remanded the case to the court of appeals to determine whether Holland’s case constitutes extraordinary circumstances sufficient to warrant equitable relief.

For an excellent analysis that pulls no punches, read Negligence-With Cooties.

Governor Brad Henry, Don't Execute a Potentially Innocent Person

2010-06-16T01:07:00.010-04:00

Just two days from now, Jeffrey Matthews is scheduled to be executed in Oklahoma for a crime of which he may be innocent. Evidence thought to have been lost was just discovered and Matthews' defense team is seeking a 60-day reprieve to allow time to resolve the issues raised by the reappearance of this evidence. Matthews' fate is now in the hands of Governor Brad Henry (D) who has the authority to grant the reprieve.

Oklahoma death row inmate Jeffrey Matthews is scheduled to be executed Thursday, June 17, 2010 at 6 pm, for his alleged participation in the murder of Otis Earl Short. According to the National Coalition to Abolish the Death Penalty, he may very well be innocent of the crime.

The offense involved a 1994 burglary of a home occupied by a husband and wife, in which the husband was killed and the wife wounded. The State's theory of the crime, as supported by the wife's testimony, was that there were two perpetrators. One of the perpetrators, Tracy Dyer, was identified quickly by police and it is undisputed he was present. Dyer made a traceable phone call from within the residence, his fingerprints were found in the home, and he confessed to being there. Dyer was convicted and received a life sentence with possibility of parole. He is up for parole next year.

The State convicted Jeff Matthews based on circumstantial evidence. Despite the conviction resting solely on circumstantial evidence, Matthews was sentenced to death. Some of this circumstantial evidence has been questioned by the prosecution's own investigator and a former deputy sheriff involved in the case. The former deputy sheriff spoke on behalf of Mr. Matthews at his May 26, 2010 clemency hearing, where the Oklahoma Pardon and Parole Board denied clemency by a 3 to 2 vote.

Dyer has both exonerated and implicated Mr. Matthews in various statements he has given. Unlike Dyer, however, Matthews' fingerprints were not found at the crime scene. In fact, no forensic evidence of any kind - no blood, no DNA, no fingerprints, no gunshot residue, no hair or fiber evidence - has ever been identified to link Mr. Matthews to the crime. Importantly, multiple fingerprints were collected at the scene that were never identified. Mr. Matthews sought to have these fingerprints compared to prints of known suspects - one being the uncle of Tracy Dyer who was staying with Dyer at the time of the offense and who had a prior felony conviction for burglary, and the other having been identified by police as a suspect in a previous burglary at the same residence.

In May of 2008, counsel for Mr. Matthews was informed that the unidentified prints retrieved from the home had been lost or misplaced. Just last week, however, ten days before Mr. Matthews' scheduled execution, the lost fingerprints were found. In the last few days the Oklahoma State Bureau of Investigation has attempted to compare these prints with the prints of the alternate suspects, and a written report is expected to be issued within a day or two of the execution. The defense team for Mr. Matthews has not been able to be involved in conducting or overseeing the fingerprint comparisons.

Based on these circumstances, counsel for Mr. Matthews has requested Governor Brad Henry issue a 60-day reprieve so that efforts can be made to satisfactorily resolve the outstanding issue of the fingerprints and identify Dyer's true accomplice.

Governor Henry, in the interests of justice, do not let the execution of a potentially innocent person move forward. Exercise your authority and grant the reprieve to prevent what may be a terrible miscarriage of justice and an unforgivable stain on the State of Oklahoma.

"Thus you will remove from your midst guilt for the blood of the innocent, for you will be doing what is right in the sight of the Lord" (Deuteronomy 21:9).

Urge Governor Henry to intervene immediately and grant Jeffrey Matthews the 60-day reprieve requested by his attorneys:

Governor Brad Henry
Phone: 405 521 2342
Fax: 405 521 3353

UPDATE (6/16):
Governor Brad Henry issued a reprieve!
Thank you, Gov. Henry, for making a correct decision that is in line with the ideals upon which this country was founded.
This case, regardless of the final outcome, shows the bankruptcy of the death penalty. The justice system is comprised by humans prone to error and mistakes, and driven by ego and prestige. It is enough for one rotten apple in this huge system to send an innocent man to his death. That is one more reason why Oklahoma should now conclude from the "close call" nature of this case that it is time to follow in the footsteps of Maryland and abolish the use of death penalty.

Happy 200th Birthday, Robert Schumann!

2010-06-08T08:27:00.014-04:00

Today marks the 200th anniversary of the birthday of the great classical-romantic composer Robert Schumann. Interestingly, Schumann's intentions were to become a performer, an accomplished pianist. But fate and determination changed the course of his life. His obsession to perfect his piano technique led him to suffer a hand injury. It is unclear how exactly it was caused; my piano teacher told me the story that Schumann used some mechanical finger-strengthening device to practice separating the fingers, thereby causing irreparable harm to his fingers (she meant it as a warning not to do anything "unnatural" to my hands lest I suffer a similar fate!). Wikipedia also brings that story (though it doesn't include the details I remember about tying his hand to the door knob and opening and closing the door to increase the independence and mobility of his fingers). Whatever the exact cause and nature of his injury, Schumann realized that the hand injury will prevent him from being a virtuoso pianist. Not a person to throw in the towel with regard to musical aspirations, he focused his energy on composing music -- and became one of the greatest classical composers, leaving us with a treasure-trove of beautifully inspiring music.

Music critic Miles Hoffman points out that Schumann was one of the greatest classical composers because of the depth of his music and its ability to capture the human spirit. Although he started out by writing solely for piano, he branched out and composed a vast range of works, in all sorts of combinations of instruments, including symphonies and concertos and vocal works. It's an encyclopedic body of work.

Many of Schumann's works for piano are familiar to people who took piano lessons. It's been so many years since I studied piano that I can't remember which Schumann pieces I played. But I certainly remember the piece that my sister played -- one of his most wonderful and melodic piano compositions - Kinderszenen or Scenes from Childhood. This collection of short pieces includes 'Traumerei' - one of Schumann's most quiet, introspective and popular pieces. During the years we grew up in Israel, she often filled our house with the beautiful music of Scenes from Childhood (my father, A"H, also loved this piece very much). Indeed, as its name suggests, this piece by Schumann is one of my fondest childhood memories.

Here is Vladimir Horowitz, one of greatest performers of the 20th century, playing Scenes from Childhood:

UPDATE: For music appreciation lovers, I recommend the excellent NPR audio piece explaining the musical beauty of "Traumerei" - Hear What Makes Schumann's "Traumerei" So Great.

ACLU Sues Government for Records About Use of Unconstitutional Spying Powers

2010-06-07T04:01:00.007-04:00

Last week, the American Civil Liberties Union sued the government for the release of documents about the implementation of the FISA (Foreign Intelligence Surveillance Act) Amendments Act of 2008, an unconstitutional law that gives the executive branch virtually unchecked power to collect Americans' international e-mails and telephone calls in dragnet fashion, without a warrant and without suspicion of any wrongdoing.

In November 2009, the ACLU filed a Freedom of Information Act (FOIA) request for records related to the government's interpretation and implementation of the FISA Amendments Act, including reports and assessments mandated by the law concerning how the FISA Amendments law is being used, how many Americans are affected by this sweeping spying regime, and what safeguards are in place to prevent abuse of Americans' constitutional rights.

Because the government did not release any of the records requested, the ACLU was forced to file suit in the US District Court for the Southern District of New York in order to obtain the records. According to the complaint,

news reports suggest that the government has used its FISA Amendment Act [FAA] powers to collect U.S. citizens' and residents' international communications by the millions and has used the FAA improperly to collect purely domestic communications as well.

The lawsuit alleges that the requested records are needed to enable informed public debate about whether the FISA Amendments - which expire in 2012 - should be repealed, amended or extended.

Melissa Goodman, staff attorney at the ACLU, commented: "Despite being in operation for nearly two years, the American public is largely in the dark about how the controversial FISA Amendments Act has been implemented in practice.The public has a right to know how the government is using, and possibly abusing, an intrusive surveillance power that implicates the privacy and speech rights of all U.S. citizens and residents."

The lawsuit, formally filed as a Complaint for Injunctive Relief, is available here.

On Memorial Day, Giving Credit Where Credit Is Due

2010-05-30T09:04:00.011-04:00

Every Shabbat in our synagogue, following the reading of the Torah portion, we say "A Prayer for Our Country." A member of the congregation -- each week it's a different member -- comes to the bimah and recites the following prayer:

Our God and God of our ancestors: We ask Your blessings for our country -- for its government, for its leaders and advisors, and for all who exercise just and rightful authority. Teach them insights from Your Torah, that they may administer all affairs of state fairly, that peace and security, happiness and prosperity, justice and freedom may forever abide in our midst.

Creater of all flesh, bless all the inhabitants of our country with Your spirit. May citizens of all races and creeds forge a common bond in true harmony, to banish hatred and bigotry, and to safeguard the ideals and free institutions that are the pride and glory of our country.
May this land, under Your providence, be an influence for good throughout the world, uniting all people in peace and freedom -- helping them to fulfill the vision of Your prophet: "Nation shall not lift up sword against nation, neither shall they experience war any more" (Isaiah 2:4). And let us say: Amen.

There is an important phrase in this prayer: "for its government, for its leaders and advisors, and for all who exercise just and rightful authority." Recognizing there are those in the government who exceed their authority and abuse their power, we do not want to condone that behavior, and certainly, we don't want God's blessings to come to them. This is especially true regarding those in governmental agencies who operate in secrecy, taking advantage of the darkness to violate the laws and Constitution of the United States. Thus, this prayer is not a carte blanche to all those in government to act however they want; this prayer emphasizes they must follow all the laws and regulations that insure that they "exercise just and rightful authority."

This past Shabbat, in honor of Memorial Day, our rabbi added an appropriate choreographic element to this prayer. Before the recitation, he asked that all the veterans in our congregation come up to the bimah and face the congregation. About twenty members, among them veterans of the Gulf War, Vietnam War, Korean War, and even World War II, then strode to the forefront of the synagogue and stood solemnly while we recited the prayer. Thus, we noted and acknowledged all those who served our country, and gave credit to all those who were willing to sacrifice life and limb to protect our freedoms and liberties.

Supreme Court Grants Certiorari in Hank Skinner's Petition to Allow Potentially-Exonerating DNA Testing

2010-05-27T08:52:00.011-04:00

Earlier this week, the Supreme Court granted certiorari in the petition of death-row prisoner Hank Skinner who is demanding DNA testing that may exonerate him (see my previous posts here and here and here).

The general question that the court will decide is whether a convicted prisoner seeking access to biological evidence for DNA testing that may potentially prove his innocence may assert a civil rights claim under 42 U.S.C. Section 1983, or if such a claim is cognizable only under a writ of habeas corpus. The Supreme Court's stay of execution, granted --inexplicably-- just one hour before Mr. Skinner was executed, will remain in effect until the case is decided.

Below is the "QUESTION PRESENTED" of Hank Skinner's petition in its entirety (the opening page of every petition for writ of certiorari contains a paragraph that concisely summarizes the issue to be decided):

For ten years, Henry W. Skinner has sought access to DNA testing the could prove him innocent of the murders that landed him on Death Row. After the Texas
courts arbitrarily turned back his diligent attempts to take advantage of state
statutes affording such relief, he sued in federal court under 42 U.S.C. s. 1983 to vindicate his due process right to "fundamental fairness in the operation" of Texas's scheme. Dist. Attorney's Office v. Osborne, 129 S. Ct. 2308, 2320 (2009). The district court dismissed Mr. Skinner's Section 1983 suit solely on the ground that his claim sounded only in habeas corpus, and the Fifth Circuit summarily affirmed.
The question presented is the same one the Court granted certiorari in Osborne to decide, but left unresolved: May a convicted prisoner seeking access to biological evidence for DNA testing assert that claim in a civil rights action under 42 U.S.C. Section 1983, or is such a claim cognizable only in a petition for writ of habeas corpus?

As Professor Rob Owen, counsel of record for Hank Skinner, points out in his statement (copied below), this is only a first step in a case where justice has long been delayed and denied:

We are pleased that the Supreme Court has agreed to hear Mr. Skinner's appeal. That decision represents the necessary first step to our eventually obtaining the DNA testing that Mr. Skinner has long sought. We look forward to the opportunity to persuade the Court that if a State official arbitrarily denies a prisoner access to evidence for DNA testing, the prisoner should be allowed to challenge that decision in a federal civil rights lawsuit.

Intelligence Community Whistleblower Protection Act of 1998

2010-05-25T22:53:00.009-04:00

In 1998, Congress passed a little-known law outlining the proper procedures for reporting on abuses of power and violations of law that involve classified information. The law, Intelligence Community Whistleblower Protection Act of 1998 (full-text version), allows employees or contractors of the US intelligence agencies, including the CIA, NSA and FBI, to complain to Congress about an "urgent concern" -- defined as "serious or flagrant problem," "abuse," or "violation of law or Executive Order," that is related to the funding, administration or operations of an intelligence activity, but does not include differences of opinion concerning public policy matters.

For example, according to the law, if an employee or a contractor of the FBI witnesses an abuse of power or violation of the law, he may take the following steps, even if it entails revealing classified information:

1. First, he must report the abuse to the Inspector General of the Department of Justice.
2. Within 14 days, the Inspector General must determine if the complaint appears credible and if so, he must transmit the complaint to the Director of the FBI.
3. Within 7 days, the Director must forward the complaint to the intelligence committees of Congress (Senate and House) together with his comments.
4. If the Inspector General fails to transmit the complaint, or does not transmit it in accurate form, the employee or contractor may submit the complaint to Congress by contacting either or both of the intelligence committees directly (after obtaining directions on the appropriate security practices).

This law is critical to preventing abuses of power in the intelligence community and upholding the rule of law. It balances two competing interests: the need to report and prevent abuses of power in the netherworld of intelligence agencies, and the importance of safeguarding classified information. Because intelligence agencies operate in the dark and their activities are classified, there is danger that they will abuse the broad powers given to them and violate the Constitution. As Lord Acton said: Power corrupts, and absolute power corrupts absolutely. Allowing employees to report abuses of power to members of Congress promises there will be Congressional oversight, minimizing the possibility that intelligence agencies will break the laws of the United States.

This mechanism creates a system of checks and balances that is critical for upholding one of the most important democratic principles -- the application of the rule of law to all government agencies. After all, as President Obama has reiterated many times (for example in his speech in Turkey) an enduring commitment to the rule of law helps maintain security and strengthens our country.

Biblical Financial Reform

2010-05-23T14:39:00.006-04:00

At the end of this week’s Torah portion, Naso (Numbers 4:21 – 7:89), there is a section that seems laboriously repetitive and utterly redundant. I am referring to Chapter 7, which deals with the inaugural offerings of the tribal leaders of the Israelites. These 12 tribal leaders were foremen during the days of the Egyptian enslavement, and willingly accepted beatings from the Egyptian taskmasters rather than punish their fellow Israelites for not meeting their quotas of bricks. As a reward, they were honored to bring these inaugural offerings upon the dedication of the Tabernacle (the mishkan).

The section starts with the detailed offering of Nahshon Ben Aminadab, the leader of the tribe of Judah:

The one who presented his offering on the first day was Nahshon son of Aminadab of the tribe of Judah. His offering was: one silver bowl weighing 130 shekels and one silver basin of 70 shekels by the sanctuary weight, both filled with choice flour with oil mixed in, for a grain offering; one gold ladle of 10 shekels, filled with incense; one bull of the herd, one ram, and one lamb in its first year, for a burnt offering; one goat for a purification offering; and for his sacrifice of peace offering: two oxen, five rams, five he-goats and five yearling lambs. That was the offering of Nahshon son of Aminadab.

726 Redundant Words

The Torah then recounts the inaugural offerings of the second leader, Netanel son of Zuar (from the tribe of Issachar) – and it was the exact same offering! These six verses are repeated word for word. And then the third leader, Eliab son of Helon – and, again, it was the exact same offering, and all the verses are repeated once more! And on and on it goes, with the Torah repeating these verses for all 12 tribal leaders.

And the question is: Since all their offerings were identical, why couldn’t the Torah -- after recounting the first offering-- simply tell us the rest of the leaders of the tribes brought the same offerings! This would have condensed a very long chapter into a few sentences. Moreover, it would have saved 726 words (since the inaugural offerings for each tribal leader contains approximately 66 words, and this is repeated extraneously 11 times: 66 * 11 = 726).

This redundancy is perplexing, given that one of the most important literary techniques of the Torah is brevity. It is well-known that the Torah uses words sparingly, and does not waste words, certainly when they don't add any value. So why this useless repetition that is seemingly devoid of any meaning?

The CEO of McDonald's Meets the Pope

In order to answer this question, let's first remind ourselves of a famous joke.

The CEO of McDonald's gets an audience with the Pope. He says, "I'd like to give $100 million to the church, and all we ask in return is that for one year, you change the line in the Lord's Prayer from 'Give us this day our daily bread' to 'Give us this day our daily Big Mac.' "

The Pope says, "I really can't."

So the CEO says, "I can double it to 200 million dollars, and that's as far as I can go."

The Pope says, "Let me talk this over with my cardinals and get back to you."

He then gathers his cardinals and addresses them in a convocation:

"I have good news and bad news. The good news is we're going to receive a 200 million dollars from McDonald's for one year. The bad news is we blew our deal with Burger King."

There is a grain of truth contained in this joke. Organized religion and money can be a dangerous mix. It is tempting for religious officials to justify violations of the law, perhaps even dishonest behavior, in the name of serving God. We know too well that often there is corruption where organized religion deals with large sums of money. This is true not just with religious officials but with leaders and politicians in general: The scandals where politicians have stolen money, embezzled, and commingled money of others with their own money, are too numerous to count.

In the case of the Israelites’ tribal leaders, there was danger that they will use these offerings to collect or take money from their constituents, and then illegally use it for the inaugural offerings. In order to show that there was a complete and detailed accounting of where the money came from and where it went, the Torah needs to recount all the offerings for each and every tribal leader. We need this detailed accounting to remove suspicion that the leaders took advantage of handling all the gold, silver, incense and high-priced animals for their own enrichment. The leaders of the community must be above any suspicion of personal aggrandizement.

Another example of this idea is the rule that family that prepared the incense for the Temple services would never let their relatives wear perfume, lest some suspect them of using Temple incense for their personal benefit.

These days everyone is talking about financial reform and accountability. The Senate and the House are considering financial reform bills that would increase accountability and prevent greed, fraud, and manipulation by greedy corporations and speculators. The idea contained in this week’s parasha is – in some ways – a Biblical version of the ideas behind financial reform.

Biblical Counterterrorism Advice

2010-05-16T12:37:00.003-04:00

This week's Torah portion, Bamidbar (the beginning of the Book of Numbers), deals with mundane matters – detailed results of a population census and a description of the Israelites' camping and travel arrangements.

But in the midst of these seemingly boring numerical data, there is an important piece of counterterrorism advice.

Incidental to the census of the Tribe of Levi, a verse dealing with the death of Aaron's two sons, Nadab and Abihu, recalls a tragic event of the past:

"But Nadab and Abihu died by the will of the Lord, when they offered alien fire before the Lord in the wilderness of Sinai; and they left no sons." (Numbers 3:4)

And the question is: Since we already know the circumstances of the death of Nadab and Abihu, why is it necessary for the Torah to repeat the events that were already recounted in great detail in the previous chapters? Certainly we remember very well the dreadful story– thoroughly documented in Parashat Shemini – of their being consumed in a fireball because they brought the alien fire ('eish zara')!
Back in Parashat Shemini, when the Torah described this dramatic and tragic event, we are told that Nadab and Abihu offered "before the Lord alien fire which He did not command them." (Leviticus 10:1). What is the import of "alien fire which He did not command them?"

One of the great late-19th century rabbis, the Netziv of Volozhin, explains:

They entered because of the fire of enthusiastic love of God, and the Torah teaches that even though love of God be very dear in the eyes of God, this is not the way; He did not command this.

In their religious fervor, Aaron's sons performed acts which God had not ordered. Their religious zeal led them astray. They distorted the religious goals of sacrificial offerings; and, because of this, they were sentenced to die. Thus, even religious fervor can be an "alien fire."

The severe punishment which Nadab and Abihu suffered was a warning to prevent others from performing unacceptable acts in the name of that dangerous religious passion. The Netziv points out that enthusiasm in the performance of mitzvot can lead to loss of judgment and to extreme behavior. The "alien fire" is an expression and symbol of a warped service of God; a religious philosophy in which "the end justifies the means."

In our parasha, the Torah appends an important fact about Nadab and Abihu– "and they left no sons." On first thought, this seems to have been added for the purpose of the census. But perhaps there is more to this statement than meets the eye. This additional fact may very well be a key explanation of why people perform radical and extreme acts in the name of religion.

Instead of engaging in cultivating their own garden, e.g. raising children, building a career, living a normal life, they immersed themselves in a world of holiness. Nadab and Abihu saw the world through a prism of holiness. Driven and consumed by this motivation to be holy in every single aspect of their life, they made a grave error of judgment and crossed the boundaries -- only to be punished and die in a terrible death.

According to this interpretation, "and they left no sons" is not only a statement of fact; it is the cause of their tragic fate. This is why they fell into the trap of religious zealotry. Had they understood that the Torah commands us to live normal lives – and the epitome of normal life is raising a family – they would not have reached so tragic an end.

In this day and age, when we are devoting so much time and energy to foil terrorist plots of religious extremists, this is an important piece of counterterrorism advice. People who are not living a normal life, people who don't have families - are easily radicalized. The combination of being single and highly religious is a combustible one -- and can lead to acts of extremism and terror. In order to identify these people and foil these plots in advance -- that's where we should be looking.

Nidal Malik Hasan, the perpetrator of the Ford Hood massacre, was single. Yigal Amir, the Jewish terrorist who murdered Yitzhak Rabin, was single. Umar Farouk Abdulmutallab, who attempted to blow up Northwest Airlines Flight 253 over Detroit, was single. These are examples of people who turned away worldly pleasures and family life, and their warped religious devotion radicalized them to the point of committing murder. Thus, "and they left no sons" is a key piece of counterterrorism advice: Look out for people who are single, are not interested in family life, and are immersed in a world of religion.

Another conclusion follows: maintaining a normal life is just as important to proper religious observance. God does not want us to give up on the normal joys and enjoyments of life; a situation in which the sole focus is achievement of holiness is highly dangerous.

Thus, seeking to enjoy the "normal" things that most people want in life is not an inferior goal. It is not a shallow "North Tel-Aviv" longing. In Israel, you often hear the West Bank settlers and their supporters denounce the "empty" Israelis living in Israel's metropolitan areas who only want to be "normal" and are focused on the pleasures of life. The idea found in this week's parasha is a rebuttal: living a normal life and wanting to be normal like the rest of the world is an essential condition for balancing out the dangers of religious radicalism.

Certainly, not all people who devote their lives to attaining holiness are terrorists; but one must beware of people who are so religious that they neglect to enjoy the pleasures of life. The story of Nadab and Abihu is significant because it teaches us that if everything in life is viewed through the lenses of holiness (and especially if it's holiness of the land or holiness of the state), one can easily lose good moral judgment and become obsessed with holiness to the extent of justifying killing innocent people.

Man Who Foiled the Times Square Bombing is a Muslim Immigrant

2010-05-07T03:43:00.007-04:00

Praised be Aliou Niasse, the Senegalese Muslim immigrant working as a street vendor in Manhattan, who first alerted the police to the car bomb in Times Square. This man should receive a special award from Mayor Bloomberg for saving the lives of countless human beings. The car bomb, comprised of three propane tanks, consumer-grade fireworks, two filled 5-gallon petrol containers, two clocks and electrical wire, could have created a huge fireball and killed dozens of people.

It's not surprising that the American media’s narrative about the failed bombing is ignoring the fact that the man who was responsible for police finding the bomb was Muslim. The UK’s Times Online reports:

Aliou Niasse, a street vendor selling framed photographs of New York, said that he was the first to spot the car containing the bomb, which pulled up right in front of his cart on the corner of 45th street and Broadway next to the Marriott hotel.
“I didn’t see the car pull up or notice the driver because I was busy with customers. But when I looked up I saw that smoke appeared to be coming from the car. This would have been around 6.30pm.”
“I thought I should call 911, but my English is not very good and I had no credit left on my phone, so I walked over to Lance, who has the T-shirt stall next to mine, and told him. He said we shouldn’t call 911. Immediately he alerted a police officer near by,” said Mr Niasse, who is originally from Senegal and who has been a vendor in Times Square for about eight years.

This highlights the importance of integrating the immigrant communities into our society, and understanding that they can contribute significantly in the fight against terrorism. As the Leadership Conference on Civil Rights notes:

South Asian, and Muslim communities may yield useful information to those fighting terrorism. Arabs and Arab Americans also offer the government an important source of Arabic speakers and translators. The singling out of Arabs, South Asians, Muslims, and Sikhs for investigation regardless of whether any credible evidence links them to terrorism will simply alienate these individuals and compromise the anti-terrorism effort. In particular, to the extent that federal authorities use the anti-terrorism effort as a pretext for detaining or deporting immigration law violators, individuals who might have information that is useful against terrorism may be afraid to come forward.

How to Educate Effectively: A New Reading of the Passover "Four Sons" Allegory

2010-04-24T13:43:00.016-04:00

I have always felt uncomfortable when reading the Four Sons section of the Haggadah – the part where four sons, representing four types of personalities, ask questions about the Passover rituals, and we give a different answer to each son. There’s the “Wise Son” [hacham], the “Wicked Son” [rasha], the “Simpleton” [tam], and the One Who Does Not Know How to Ask – each one of them is basically asking us to explain what we are doing on the night of Passover, but each one receives a different answer.

My problem has always been with the answer given to the “Wicked Son.”
The “Wicked Son” asks:

What is this service to you?!

And according to the traditional text, our response should be:

He says 'to you', but not to him! By thus excluding himself from the community he has denied that which is fundamental. You, therefore, must blunt his teeth and say to him: "'It is because of this that G-d did for me when I left Egypt'; 'for me' — but not for him! If he had been there, he would not have been redeemed!"

The festive and happy mood of Passover is marred by this harsh and vindictive response. Not only is it cruel and mean-spirited, but it seems the most uneducational way to treat a rebellious student. Why “blunt his teeth”? Why hurl at him these nasty statements that only serve to demean him and thus reinforce his feeling of being excluded? Admittedly, the way he phrases the question – using the pronoun you ["what is this service to you"] – suggests that he is perhaps making a rhetorical statement, criticizing and making fun of the rituals, rather than asking an honest question. But aren’t all children – in some stage of their lives – rebellious?

I have always thought that this type of response reflects poorly more on the people who give such responses than the people who ask these questions. Would it not be more productive if – instead of blunting his teeth – we were to engage the rasha in conversation and try to show him the meaning of Passover? Obviously, this son has issues with religion -- would it not be more educational to address those issues, and think of ways to make the religious rituals more attractive and meaningful to him?

In life we are bound to encounter people who are mean-spirited, and mock the ideas and values that we cherish. Inevitably, we will hear people making racist remarks and stereotypical statements. What should be our reaction? Should we metaphorically blunt their teeth? Should we lower ourselves to their level and hurl back at them nasty ad hominem accusations?

The Haggadah’s traditional response is no way to effectively educate youngsters, and it is certainly not productive when dealing with adults. But there is an alternative way to address these types of situations.

A productive and educational way can be learned from the father of President Obama. Obama’s father, also named Barack, found himself in a situation where he had every right to literally blunt the teeth of a man who made a terribly-insulting racist remark, yet Barack Obama Sr. chose a different path. Here is the story, as recounted by President Obama in his book Dreams from My Father:

According to the story, after long hours of study, my father had joined my grandfather and several other friends at a local Waikiki bar. Everyone was in a festive mood, eating and drinking to the sounds of slack-key guitar, when a white man abruptly announced to the bartender, loudly enough for everyone to hear, that he shouldn’t have to drink good liquor “next to a nigger.” The room fell silent and people turned to my father, expecting a fight. Instead, my father stood up, walked over to the man, smiled and proceeded to lecture him about the folly of bigotry, the promise of the American dream, and the universal rights of man. “This fella felt so bad when Barack [Obama’s father] was finished,” Grampa would say, “that he reached into his pocket and gave Barack a hundred dollars on the spot. Paid for all our drinks and puu-puus for the rest of the night —and your dad’s rent for the rest of the month.

Obama’s father must have had to restrain himself not to punch that white racist in the face. Obama Sr. certainly could have cursed the guy and called him names - and that would be understandable. But, instead, he engaged in conversation that had a transformative effect on the man. Did Barack Obama Sr. have any assurances that the white man will admit his mistake and publicly acknowledge what a terrible blunder he had committed? Of course not, as you can never be certain - in advance - that a civilized conversation will have the power to make people see things in a different light. Yet, if you don’t try- and you go the route of blunting teeth and throwing insults – one thing is certain: That approach will never succeed in changing people’s opinions. People will never be open to seeing a different side of an issue, a new perspective, if they are being insulted, demeaned or accused. It’s only through the difficult path of continued conversation and mutual engagement that people slowly change their perceptions and opinions.

So I looked for a new commentary on the Four Sons, and I found a wonderful new interpretation by Rabbi Zalman Schachter Shalomi. Employing a bit of literary license, Rabbi Zalman transforms the Four Children into representatives of four different religious types that are commonly found in today’s Jewish community:

The Torah speaks of Four Children:
One a lamden / Sharp Student,
One a chossid / high Emotional Quotient,
One a tamim / Good One, and
One she-ayn lo shum s’fekut u’b'eyot / One Who Does Not Doubt or Question.

The Sharp Student, what does he say? “What are the testimonies, the statutes and the laws which YHVH our God has commanded you” (Deut. 6:20). So you shall answer the student according to the capacity of the student’s sharpness of wit.

The High Emotional Quotient one, what does he say? “What is this service to you?” (Exodus 12:26). So you will make an effort to reign in his longings, for he also wants to be a part of the integrity and perfection that comes with meaningful rituals. If you are loving, then he will understand devekut / cleaving, and he will get a taste of what it means to feel close to God.

The Good one, what does he say? “What is this?” (Exodus 13:14), and so you shall bear witness to him from your own experience, that hashem yitbarach is assisting you with ‘a strong hand’, to take you out and to take him out of Mitzrayim.

The One who does not question, you will feed him some maror / horseradish, so he will feel his friends’ troubles and so that compassion will be instilled in his heart.

Reb Zalman has transformed the “wicked son” into a “high Emotional Quotient" meaning someone who does not appreciate rituals and his Judaism is mainly about emotions and feelings, singing and dancing. He is energetic and emotional, and does not understand the need for all these rituals. Put in more broader context, it’s the student who has many friends and is active in sports and extra-curricular activities, but lacks the discipline for the long-hours of studying that are a requirement for success in education.

And what a beautiful answer! According to Reb Zalman, the appropriate response is to invest a lot of time and effort with the student – helping him understand the importance of studying and discipline. This is the parshanut – the commentary – to the Four Sons parable that is certainly more productive and educational!

Justice Stevens Retiring at 90, Ending Marathon Supreme Court Tenure

2010-04-10T02:48:00.012-04:00

A year ago, when John Paul Stevens celebrated his 89th birthday, I wrote Happy 89th Birthday, John Paul Stevens - Champion of Civil Rights! After congratulating him for reaching this milestone, I wished him many more years on the court, because we need this luminary who has consistently upheld our constitutional freedoms, protected our civil liberties, and fought against the death penalty and wrongful convictions.

Today, we read the saddening announcement that his marathon-like tenure on the Court is coming to an end. From the Supreme Court's press release:

Associate Justice John Paul Stevens has today sent the attached letter to the White House, notifying President Barack Obama of his retirement from the Supreme Court, effective one day after the Court rises for the summer recess this year. Justice Stevens has served on the Supreme Court for 34 years.

He will be sorely missed. In the next few weeks I hope to summarize some of his many precedent-setting opinions, as well as the ones in which he wrote powerful dissents. Justice Stevens leaves the next Supreme Court justice big shoes to fill.

* Huffington Post has a wonderful slide show:
Justice John Paul Stevens' 10 Most Important Supreme Court Decisions

Making Passover Meaningful with Haggadah Supplements

2010-03-30T13:14:00.006-04:00

The problem with the Haggadah is that it has not been updated for centuries, and consequently, it has lost its appeal to the modern man and woman. There are, however, many Haggadah supplements on the web that can make the reading of the Haggadah a lively ritual, applying the age-old ideas to modern problems and issues.

Specifically, check out Haggadah supplements at the Velveteen Rabbi

and Tikkun Magazine.

Here is a suggested Opening Prayer from Velveteen Rabbi Haggadah:

We read responsively:

Long ago at this season, our people set out on a journey.

On such a night as this, Israel went from degradation to joy.

We give thanks for the liberation of days gone by.

And we pray for all who are still bound.

Eternal God, may all who hunger come to rejoice in a new Passover.

Let all the human family sit at Your table, drink the wine of deliverance, eat the bread of freedom:

Freedom from bondage and freedom from oppression

Freedom from hunger and freedom from want

Freedom from hatred and freedom from fear

Freedom to think and freedom to speak

Freedom to teach and freedom to learn

Freedom to love and freedom to share

Freedom to hope and freedom to rejoice

Soon, in our days Amen.

The One-Minute Seder!

2010-03-28T03:20:00.004-04:00

It's been on the web for quite some time, but it's always a blast to view this brilliant flash video that condenses the whole Passover seder into one minute!

Hank Skinner Case: Web Resources

2010-03-26T00:08:00.013-04:00

In this day and age, when you can go online and read (almost) everything, there is no excuse for ignorance or apathy. Even when dealing with the seemingly sophisticated workings of the judicial system, anyone with a computer and a modem can read the briefs and decisions of a particular case, and thus become knowledgeable about all the details of the case and be able to form a well-supported opinion.

In the case of death row prisoner Hank Skinner (about whom I have written here and here), most of the court filings - which show the extent of this judicial travesty - are readily available to anyone who is willing to devote a few minutes to read them.

I have compiled some links and recommend that you browse them. After reading the briefs (or at least summaries prepared by lawyers and investigative journalists) you will be able to determine whether we have a system that strives to produce justice or a broken system designed to hide the terrible mistakes it sometimes makes, while erecting an impenetrable procedural wall that denies convicted defendants the opportunity to prove their innocence. Here is a non-exhaustive list of resources:

The procedural history of Skinner case (Attorney Mark Bennet)

Skinner's federal civil rights Complaint against District Attorney Lynn Switzer (Nov. 27, 2009; a Section 1983 lawsuit arguing that her refusal to allow him to test critical DNA evidence violates his constitutionally-protected life and liberty interests)

Decision of Judge Mary Lou Robinson, District Court, 31st Judicial District of Texas, Jan. 10, 2010 dismissing the Complaint (available at www.hankskinner.org --> legal documents)

Fifth Circuit Court of Appeals decision (Jan 28, 2010) - summarily denying the appeal from the District Court's decision.

Petition to the US Supreme Court for Writ of Certiorari + Application for Stay of Execution (Feb. 12, 2010) - available at www.hankskinner.org --> legal documents

Docket Summary, Supreme Court (showing the Court had ample time to halt the execution and did not have to play a painfully cruel game with Skinner and wait until an hour before his scheduled execution to issue the order)

Supreme Court Stay of Execution (March 24, 2010, issued less than an hour before scheduled execution)

Excellent articles:

Isn't a Man's Life Worth an Extra 30 Days? (Bob Ray Sanders, McClatchy Newspapers)

Thwarting Justice by Denying DNA Testing (Judge H. Lee Sarokin, Huffington Post)

Testing Phobia (Dave Lindroff, Counterpunch)

With DNA Still Untested, Texas Prisoner Hank Skinner Scheduled to Die Tonight (Liliana Segura, AlterNet)

Editorial: Hold up Skinner execution for DNA tests (Dallas Morning News)

Death row inmate entitled to delay for DNA tests (Austin American Statesman)

Blog Coverage of the Skinner Stay (The Standdown Texas Project)

Justices May Opt to Settle DNA issue (Allan Turner, Houston Chronicle)

Videos:

Larry Ling Live (interview with Hank Skinner, wife Sandrine and Mr. Curtis, exonerated by DNA evidence)

(more links to be added soon)

Supreme Court Stays Execution of Skinner; Now They Must Grant Certiorari

2010-03-24T20:08:00.005-04:00

In an 11th-hour intervention, the Supreme Court today prevented the State of Texas from executing Hank Skinner, and issued a stay of the execution [Court order] to allow the Justices more time to consider whether to grant certiorari.

Thank God, the values of integrity, decency and justice prevailed in the minds of the Supremes. Our society has been spared, temporarily, the terrible shame of murdering a man despite nagging doubts of his guilt, caused by critically-important DNA evidence that was left untested. Said his attorney, University of Texas law professor Rob Owen:

We are relieved that the U.S. Supreme Court has intervened to prevent Mr. Skinner’s execution. As a result of this action, the court will have more time to determine whether to hear his appeal. This action suggests that the court believes there are important issues that require closer examination. We remain hopeful that the court will agree to hear Mr. Skinner's case and ultimately allow him the chance to prove his innocence through DNA testing.

At this stage, none of us knows for sure whether he bludgeoned Twila Busby to death and fatally stabbed her two sons on New Year's Eve, 1993. Skinner's attorneys argue he was convicted on "entirely circumstantial" evidence even while untested evidence remains sealed.

The Supreme Court must address the following issues which cast serious doubt about this conviction. As pointed out by Texas journalist Bob Ray, there are many flaws in this trial that raise grave concerns about Skinner's conviction:

1. The prosecution's main witness, a woman whose home Skinner went to after he left the crime scene, recanted her testimony on tape. She has repeated, under oath, that she lied after authorities intimidated her.

2. Crucial evidence -- seven items, in fact -- have not been tested for DNA: 1) vaginal swabs taken from Busby; 2) Busby's fingernail clippings; 3) a knife found on the front porch of Busby's home; 4) a knife found in a plastic bag in the living room; 5) a dishtowel also found in the bag; 6) the windbreaker; and 7) hairs found in Busby's hands.

3. Several witnesses believe, as was suggested during the trial, that the dead woman's uncle was the killer. He had a history of sexually assaulting Twila, and he reportedly made advances at her earlier that evening. Prosecutors did not follow up on these allegations and never pursued them. DNA from the above-mentioned items can link him to the murder.

4. Skinner's attorneys offer evidence to prove that Skinner was too incapacitated by alcohol and drugs to have committed the crimes even though he was in the house when they occurred.

5. At trial, Skinner's court-appointed attorney, Harold Cromer, was the same person who, as a prosecutor, had earlier prosecuted Skinner for two minor crimes--assault and car theft! Comer had lost his prosecutor's post when he pleaded guilty to mishandling cash seized in drug cases his office had handled. The trial judge never conducted a hearing to determine whether a conflict of interest existed.

Each one of these failures is sufficient, in my opinion, to merit granting certiorari and returning the case to the trial court for the testing of the DNA evidence and conducting a hearing to adjudicate the results of the tests. Certainly, when considered in the accumulative, these abuses should lead the Supremes to the only logical conclusion - this guilty verdict cannot stand, and Skinner is entitled to a new trial.

The state and federal courts have so far, inexplicably, blocked Skinner's efforts to have the testing done, turning the procedural bars into the modern golden calf, and worshiping the new god of procedure at the expense of substance and justice. It's high time the High Court intervened in this case, and ordered Texas to put some meaning back into the phrase "the justice system."

Open Letter to Governor Rick Perry: Order a 30-Day Reprieve of Execution to Allow for Critical DNA Testing

2010-03-23T08:57:00.011-04:00

The Honorable Rick Perry

Governor of Texas

Austin, TX 78711

By Facsimile: (512) 463-1932

Dear Governor Perry:

I am writing to urge you to order a 30-day reprieve of execution for Henry W. (Hank) Skinner to allow for DNA testing that is critical to prove his innocence or guilt.

Hank Skinner is scheduled to be executed on Wednesday, March 24. Since he was arrested in 1994, he has maintained his innocence of the three murders for which he was convicted. Untested biological evidence from the crime scene could definitively prove his guilt or innocence, and it is imperative for the sake of justice that these tests be conducted before going forward with Skinner’s execution. Not only is it critically-important for Skinner, who may possibly be put to death for a crime he did not commit, but it is needed to maintain the public’s trust in the criminal justice system. Only a system in which every piece of evidence is examined before the ultimate, irreversible punishment is carried out will gain the public's trust and respect.

Skinner’s request for DNA testing is not new -- he has been seeking the tests for 10 years, and the evidence available is central to the identity of the perpetrator. Among the evidence Skinner is seeking to test are two knives from the crime scene, hairs from one victim’s hand, clippings of her fingernails, a rape kit, and a windbreaker possibly worn by an alternate suspect. Since Skinner’s trial, significant evidence of another person’s involvement in the crime has been developed. An accredited DNA testing lab has now offered to test the evidence in Hank Skinner's case for free. The DNA tests can prevent a terrible miscarriage of justice and determine who is the true perpetrator of this heinous crime.

DNA testing has helped to apprehend the perpetrators of crimes and overturn more than 250 wrongful convictions nationwide, including 40 in Texas. I know you’re well aware of the power of DNA evidence to exonerate the wrongfully convicted. Most recently, you granted a symbolic pardon to Tim Cole who was posthumously exonerated from a wrongful conviction that cost him his life: He died in prison in 1999 after serving 14 years for a rape that DNA testing proved he did not commit. If Skinner's execution is allowed to go forward despite the untested evidence, we - as a society - might carry the shameful responsibility for an unforgivable sin -- the killing an innocent person.

The right not be wrongfully executed is enshrined in our justice system by way of the constitutional due process protections guaranteed by our Constitution. Accordingly, this grave concern should should take precedence over all other considerations, including the procedural reasons given by Texas courts for refusing the request for the DNA tests. Indeed, I cannot think of a more egregious violation of our inalienable rights than executing an innocent person, and I am certain you would agree with that premise.

Governor, please exercise the authority granted to you under Texas law to delay this execution so DNA testing can be conducted. I ask that you guide yourself in this decision by the fundamental values of integrity, decency and justice, and don’t allow Hank Skinner to be executed when untested evidence exists that could lead to his exoneration.

Respectfully yours,

Shamai Leibowitz, Esq.

Tell Texas Not to Execute Hank Skinner Before Full DNA Testing Is Conducted

2010-03-14T13:56:00.006-04:00

Hank Skinner is set to be executed by the State of Texas for a crime he may not have committed. Skinner has steadfastly maintained his innocence, and Texas is refusing to conduct DNA tests that may prove his innocence.

Skinner was found guilty of the 1993 murder of his girlfriend and her two adult sons, and is scheduled to be executed on March 24th. In his original trial, Skinner was represented by a former district attorney who had previously prosecuted him for theft and assault. He was convicted primarily on the basis of testimony from his ex-girlfriend, which she recanted in 1997, and on circumstantial evidence. Skinner has vigorously maintained his innocence. To date, the State of Texas has refused to test or release all of the DNA evidence that was collected from the crime scene - including fingernails, a rape kit, knives, a towel, and a windbreaker - that could possibly exonerate Skinner.

Former Texas district attorney Sam Millsap published an op-ed in the Houston Chronicle lambasting Texas authorities for refusing to grant post-conviction DNA testing. He starts the op-ed by recounting another case in which DNA testing came too late:

Last week, Gov. Rick Perry granted the state's first posthumous pardon to a man who was innocent of a crime for which he had spent 13 years in prison. DNA testing cleared Tim Cole of a rape he did not commit, but unfortunately it came too late — nine years after he had died in prison. The state must do everything it can to prevent this kind of tragedy from happening again.
...
I'm not an advocate for Hank Skinner. I'm an advocate for the truth. If DNA tests could remove the uncertainty about Skinner's guilt — one way or the other — there's not a good reason in the world not to do it.

Attorney Millsap explains persuasively why he no longer supports the death penalty:

Since 1973, 139 people in 26 states have been released from death row based on evidence of their innocence. Eleven of them were in Texas. Many of these people were freed because of DNA evidence. But DNA testing works only if we use it.
Skinner's execution date is just a few days away, but key pieces of evidence have never been tested, including two knives, one of which might be the murder weapon; a man's windbreaker, which had blood, sweat and hair on it and was found next to the victim's body; the victim's fingernails, which may have DNA evidence under them; and samples from a rape kit.

Skinner's last hope is now with the Supreme Court:

Attorneys for Skinner have filed an appeal with the U.S. Supreme Court asking the court to stop Skinner's execution in order to decide whether prisoners can use the Civil Rights Act to compel post-conviction DNA testing. That's Skinner's last chance, and I hope the court intervenes. But frankly, I'd rather see Texas clean up its own house on this one. Before we send a man to his death, shouldn't we do everything in our power to be certain of his guilt?

Now is the time for all the Jewish organizations that mobilized to save the life of Martin Grossman RIP to raise their voices to stop this impending execution. The words of Israeli Chief Rabbi Yona Metzger, who intervened on behalf of Grossman, resonate in this case even louder:

It has come to my attention that new evidence has surfaced and changes in the law have taken place that merit the consideration of clemency... Biblical tradition also emphasizes that justice must be tempered with mercy, and justice must be scrupulously administered to avoid any possible miscarriage. This is particularly true in the case of capital punishment.

Please join the people and the organizations mobilizing to stop this execution. To learn more about this case and take steps to apply pressure to prevent Texas from committing this travesty - click here.

May the SCOTUS justices act according to basic standards of justice and decency and issue an order to stop this execution.

A Divided Federal Appeals Court Rules "Under God" Phrase - Constitutional

2010-03-12T01:06:00.011-05:00

The Pledge of Allegiance, recited by my two kids everyday in school, reads:

I pledge allegiance to the flag of the United States of America and to the republic for which it stands, one nation under God, indivisible, with liberty and justice for all.

This is the current official version, but the phrase "under God" wasn't always there. It was added by Congress in 1954 in a Cold War-era gesture against the godless communism of the Soviet Union. Almost immediately after the amendment of the pledge, the constitutionality of the phrase was challenged but the amendment easily survived these challenges; it seemed no court would dare face head-on the powerful religious forces in America.

But that changed in 2002, when atheist Michael Newdow successfully challenged the constitutionality of the recitation of "under God" in public schools. He contended that mandating his child to mention God violates the principle of separation of church and state, and is thus prohibited by the Establishment Clause of the First Amendment.

When the California-based 9th Circuit ruled in 2002 in his favor, holding that the wording violated the Establishment Clause which prohibits the enactment of any law or official policy in support of a religion, a huge political firestorm erupted. Lawmakers in both houses of Congress took to the floor to condemn the legal ruling. Pundits and talk show hosts decried the brazen Ninth Circuit court for, God forbid [pun intended], supporting and advancing atheism in the US.

The controversy died in a whimper when when a U.S. Supreme Court review in 2004 ducked the constitutional question. The justices threw out Newdow's lawsuit against the Elk Grove Unified School District, which his daughter attended, on grounds that he lacked standing to sue because he didn't have primary custody of the girl.

Not a person to give up a worthy constitutional fight, Newdow, a physician with a law degree, brought an identical challenge against the Rio Linda Union School District practice of leading daily pledges, and won - on behalf of his client, an atheist whose daughter attends public school in the district - a favorable ruling from the District Court barring the recitation of the words "under God."

But today, the 9th Circuit, in a divided 2-1 ruling [193 pages], reversed the lower court's decision and upheld the constitutionality of the "under God" phrase.

First, the majority opinion noted that the question is not whether schools can force students to recite these words against their wishes. It was stipulated by all the parties that students who elect not to recite the pledge are free to do so. The Supreme Court ruled, decades ago, that forcing a student to recite the pledge would constitute a clear violation of a citizen's right to be free of state interference in his religious or atheistic beliefs. This is how the majority opinion phrased the legal question at the heart of this case:

Thus, this case presents a familiar dilemma in our pluralistic society—how to balance conflicting interests when one group wants to do something for patriotic reasons that another groups finds offensive to its religious (or atheistic) beliefs. In other words, does Roe have the right to prevent teachers from leading other students from reciting the Pledge of Allegiance—something we all agree is a patriotic exercise—because the mention of God in the Pledge offends her as an atheist?

The majority's answer was a resounding "no." They held:

that the Pledge of Allegiance does not violate the Establishment Clause because Congress' ostensible and predominant purpose was to inspire patriotism and that the context of the Pledge - its wording as a whole, the preamble to the statute, and this nation's history—demonstrate that it is a predominantly patriotic exercise. For these reasons, the phrase "one Nation under God" does not turn this patriotic exercise into a religious activity.

Judge Stephen Reinhardt, a champion of civil liberties, dissented. In a rigorous and powerful 130-page opinion, he refuted each one of the majority's arguments. First, he accused the majority of deliberately misstating the issue that is before the Court, explaining that:

In 1954 Congress amended the Pledge by inserting into that patriotic and secular instrument the religious phrase “under God.” The issue here is whether the amendment to the Pledge — the insertion of the phrase “under God” — was enacted for a predominantly religious purpose, not whether the Pledge as a whole was enacted for such a purpose.

Second, he wrote, the issue is not whether a young student can prevent other young students from reciting a pledge with a religious reference. Rather, he opined, the issue is whether the Constitution prohibits young Roe’s state-employed teachers from conducting the state-directed, daily recitation of the “under God” version of the Pledge in public schools. To be sure, prohibiting such recitations “deprives Christians [and other adherents to monotheistic religions] of the satisfaction of seeing the government adopt their religious message as [its] own, but this kind of government affiliation with particular religious messages is precisely what the Establishment Clause precludes."

Judge Reinhardt scrutinizes with a microscope the Congressional amendment that added the words "under God" and concludes:

To put it bluntly, no judge familiar with the history of the Pledge could in good conscience believe, as today’s majority purports to do, that the words “under God” were inserted into the Pledge for any purpose other than an explicitly and predominantly religious one: “to recognize the power and the universality of God in our pledge of allegiance;” to “acknowledge the dependence of our people, and our Government upon the moral direction and the restraints of religion,” 100 Cong. Rec. 7590-91 (1954); and to indoctrinate schoolchildren in the belief that God exists, id. at 5915, 6919.

The Lemon test (a.k.a. SEX test)

Judge Reinhardt goes on to apply the Supreme Court jurisprudence on the interpretation of Establishment Clause. He shows that state-directed, teacher-led recitation of the “under God” version of the Pledge clearly fails to meet the constitutional standards under the famous Lemon test.

The Lemon test, for those not well-versed in First Amendment cases, refers to the three-pronged test applied to determine whether a law - which entangles the state with religion - can pass constitutional muster. Articulated in Lemon v. Kurtzman, 403 U.S. 602 (1971), the 3 conditions that need to be met are:

1. The statute [or practice] must have a secular legislative purpose;
2. Its principal or primary effect must be one that neither advances nor inhibits religion; and
3. Finally, the statute [or practice] must not foster an excessive entanglement with religion.

In short, the court needs to determine 3 factors: Secular, Effect, Xcessive (and, hence, the law school mnemonic - the SEX test). Failure to satisfy any one of the three prongs of the Lemon test is sufficient to invalidate the challenged law or practice.

In this case, because the addition of the words "under God" had a predominantly religious purpose, it necessarily violates the Establishment Clause. Indeed, Judge Reinhardt argues persuasively, under the 1954 amendment, there is no conceivable way that the plain text, let alone the history, of the Pledge as amended can be read in any way other than as an affirmation of what the author of the amendment referred to as “the definitive factor in the American way of life[:] . . . belief in God.” 100 Cong. Rec. 1700. One simply cannot in good faith daily affirm loyalty to a nation “under God” if one does not believe that God exists, questions whether there is a God, or believes in polytheism.

Reinhardt attacks the majority opinion, saying that the fundamental error the majority makes that permeates its entire analysis is that it fails to comprehend that the Lemon test must be applied to the 1954 amendment that adds “under God” to the Pledge and not to the Pledge in its entirety. The majority’s attempt to ignore the amendment and instead base its analysis on “the Pledge as a whole” is contrary to the legal principles. Moreover, Judge Reinhardt argues the majority is using a dishonest approach in order to achieve a preconceived outcome. In one of his blistering attacks on the majority, he writes:

Although the majority’s willful blindness toward the existence and text of the amendment to the Pledge may be a necessary precondition to its reaching its desired outcome in this case, its refusal to follow controlling Supreme Court precedent reflects remarkable disdain for the law.

Newdow, as expected, vowed to continue on with the fight. He said he would petition for rehearing en banc (a rehearing by a full 11-judge panel of the 9th Circuit) and for Supreme Court review. But his chances are bleak. It is a hugely unpopular cause, and the forces aligned against him are just too powerful. He needs to pray for a miracle to get this decision reversed. Oh, wait a minute, he's an atheist, so that won't happen. . . Well, the atheists and agnostics in the US will need to find some extremely courageous judges willing to stand up to a barrage of bashing from the religious right. In the current atmosphere, it's a very unlikely scenario.

In Health Care Reform, When You Have to Shoot, Shoot, Don't Talk

2010-03-11T01:49:00.005-05:00

Today, President Obama traveled to Missouri to stump for the health care reform. Although addressing a supportive crowd that cheered and clapped in the right places, he was really trying to rally support for healthcare legislation among wavering politicians from his own party. Expanding on a common theme in his speeches - that Washington is paralyzed by talk, talk and more talk - he said:

Folks in Washington, they like to talk. So Washington is doing right now what Washington does. They're speculating breathlessly day or night. Every columnist. Every pundit. Every talking head. Is this proposal going to help the Republicans or is this proposal going to help the Democrats? The time to talk is over. It's time to vote.

But who is to blame for so much talk and so little action? Part of the blame falls on the President's shoulders because he is the one constantly trumpeting the call for bipartisanship. Indeed, he never misses an opportunity to miss bipartisanship (see, e.g., the recent State of the Union address). But when you focus too much on appeasing the other party - you bring upon yourself paralysis and lose the public's trust and confidence.

By the time the President made all the concessions to the Republicans and the so-called conservative democrats, the health care reform bill became such a watered-down version of a truly democratic, equal and fair health care system that it hardly justifies the title "reform." Yes, it's better than nothing, but it's deeply disappointing that it will still leave some 15-20 millions of Americans uninsured. What a shame that Democrats don't have the same motivation and dedication for the universal health care agenda that Republicans have for their social conservative agenda. Why couldn't the Democrats rely on their majority in Congress and pass a truly enlightened bill that would guarantee universal health care? So what if some Republicans would bark and whine and intimidate?

Imagine a reverse situation - a Republican president and a Republican-controlled Congress. Is there any doubt they would storm the Senate and the House. guns blazing, mowing down anyone standing in their way, and pass - by hook or by crook - the bills that implement their agenda?

If you stand for a principle - go for it. As Tuco said in The Good, The Bad, and The Ugly: When you have to shoot, shoot, don't talk.

Synagogue Raising Money to Save the Life of Gaza Baby

2010-03-02T09:40:00.008-05:00

The people who came to my synagogue to hear the Megillah reading on Purim this week saw a large placard with a picture of a cute baby and a headline asking people to donate money to Save a Child's Heart to save the life of this toddler.

It was a picture of Nour, a sweet one-year-old from Gaza who has Congenital Heart Disease, and needs life-saving surgeries and treatments to repair her heart. Congenital Heart Disease is a type of defect in one or more structures of the heart or blood vessels that occurs while the fetus is developing in the uterus, and affects 8-10 out of every 1,000 children. Nour's prohibitively-expensive medical treatments are being sponsored by Save a Child's Heart (SACH), an organization founded by synagogue members Dr. Ovadiah and Dolores Cohen.

Established in memory of their son Dr. Ami Cohen, SACH is an Israeli-based international humanitarian project, whose mission is to improve the quality of pediatric cardiac care for children from developing countries who suffer from heart disease, and to create centers of competence in these countries. SACH is "totally dedicated to the idea that every child deserves the best medical treatment available, regardless of the child's nationality, religion, color, gender or financial situation." According to its website, SACH has helped save the lives of more than 200 children from Angola, China, Ethiopia, Eritrea, Ghana, Nigeria, the Palestinian Authority, the Philippines, Romania, Sudan, Uganda and Zanzibar. Since the project was founded, SACH has treated more than 1,000 Palestinian children.

Nour was born at term weighing 4 kgs and diagnosed with Congenital Heart Disease at the age of one month when her parents took her to the doctor because she had a cold and turned bluish. Nour's father is a Gaza policeman and her mother is a university student. Nour has an 8-year-old brother, and three sisters aged 9, 7 and 5. On March 15, 2009, Nour underwent her first open heart surgery at Al-Muqased hospital in East Jerusalem. She was later referred to SACH to undergo further treatment. On December 24, 2009, Nour underwent a diagnostic cardiac catheterization under the hands of Dr. Akiva Tamir and his team. This paved the way for the January 2010 surgery performed by Dr. Lior Sasson and his team of experts.

It is heartwarming to see members of the synagogue donating to this important cause, which embodies our core values. Please join us in this endeavor - you can donate directly to the Foundation here or to the synagogue here (and earmark it to the Foundation). Help us mend the hearts of children from developing countries by financially sponsoring the children's treatments and by training local doctors with the requisite knowledge to perform these life-saving procedures.

RIP Martin Grossman: Another Unnecessary Death in America's Obscene Obsession with Executions

2010-02-17T12:13:00.003-05:00

RIP Martin Grossman, who left this world with remarkable dignity.

Even while being killed by the cowardly executioners of Florida, led by chief executioner Gov. Charlie Crist, he maintained his dignity. He could have lashed out at this cruel and unjust system. Instead, he expressed profound remorse for the crime he had committed more than 25 years ago, and said Shema Yisrael, the sacred Biblical text recited in the daily prayer (see my commentary here) and, more poignantly, recited by Jewish martyrs throughout the ages as they were being executed. As reported by Tampa Bay Online:

In a final statement, Grossman expressed remorse to the family of Peggy Park, the Florida wildlife officer he beat and shot to death more than 25 years ago.
"I would like to extend my heartfelt remorse to the victim's family," Grossman said. "I fully regret everything that happened that night, everything that was done, whether I remember everything or not. I accept responsibility."
"I would like to say a prayer," the 45-year-old man added, then, lying on a gurney, hands strapped to arm boards and with needles in both arms, he began reciting a Jewish prayer called the Schma.
It is the most sacred prayer in Judaism and the first prayer that Jewish children learn. Among its verses: "The Lord is our God, God is one."

This utterly infuriating execution diminishes the value of human life. For those of us who are opposed to the state-sponsored and governor-stamped death squads, it will take a while to gather our thoughts. But we must redouble our efforts to abolish this primitive, barbaric (in constitutional lingo "cruel and unusual") punishment that has no place in a modern, enlightened society. How long will the United States remain in the the moral cesspool into which it has descended together with Iran, China, Somalia and Saudi Arabia?

Hold Governor Charlie Crist Accountable

Of course, the death squads will not be eliminated from our system in a quick fix. It will take significant grassroots activism and astute political skills to remove this embarrassing stain. Certainly, one necessary ingredient must be holding executioners accountable.

Florida Governor Charlie Crist must pay the ultimate political price for his crime. His rush to murder Martin Grossman, denying him even the modest 60-day stay that was justified to present a fully-supported clemency request based on new evidence regarding mitigating circumstances, was no doubt politically-motivated. Accordingly, that's where he needs to be punished.

Crist is in a primary battle to win the Republican nomination for the upcoming Senate race in Florida. I hope the thousands of leaders and ordinary citizens that organized and pleaded to save Grossman's life will devote their energy to ensure he never again gets elected to any public office. It's not too early to mobilize to defeat his political aspirations and foil his future political plans. That would certainly send one powerful message to all the other politicians out there who are considering signing death warrants or refusing to issue commutations to life imprisonment.

May Justice and Compassion Prevail in the Minds of Governor Crist and Supreme Court Justices

2010-02-16T14:08:00.011-05:00

As the execution of Martin Grossman nears (less than 4 hours), the Pope has called for mercy and issued a plea to Florida Governor Charlie Crist to commute his sentence to life without parole.

The Pope's call comes on the heels of a similar plea by Chief Rabbi of Israel Yona Metzger who wrote "It has come to my attention that new evidence has surfaced and changes in the law have taken place that merit the consideration of clemency... Biblical tradition also emphasizes that justice must be tempered with mercy, and justice must be scrupulously administered to avoid any possible miscarriage. This is particularly true in the case of capital punishment."

But so far, these pleas have fallen on deaf ears. Florida's well-oiled death machine seems to be working at full speed toward carrying out the impending execution, and Governor Crist has so far ignored the pleas of well-respected organizations and tens of thousands of American citizens.

I have always opposed capital punishment and devoted much time to publicize the case of Troy Davis, an innocent man on death row in Georgia who three times came perilously close to being executed. But this case illustrates graphically the extent of the obscene obsession that Americans have with executing people. Why do Americans, who can be proud of so many accomplishments in law, still maintain a system that deliberately kills defenseless people who have repented and do not pose any threat to society in order to satisfy the so-called "closure" wishes of victim family members? This whole notion is sick and perverse. Moreover, when I read that they make a public spectacle of the execution, and invite the victim's family to be witnesses and cheerleaders during the actual execution - it is downright repulsive and obscene. A state-sponsored murder to satisfy the primal, animalistic desire for revenge. This system needs to be overhauled. In the few hours left to save Martin Grossman's life, may wisdom, compassion and human sensibility prevail in the minds of the Governor and the Supreme Court Justices who were asked this morning in an emergency petition to stay the execution for 60 days.

Pressure Mounts on Florida Governor to Stay Execution of Martin Grossman

2010-02-15T14:07:00.007-05:00

While the US Supreme Court has refused to issue a stay of the execution of Martin Grossman, the pressure on Florida Governor Charlie Crist to stop the impending execution is mounting.

More than 200 Jewish and non-Jewish organizations have asked Governor Crist to stay the execution and allow him 60 days to present a well-supported appeal to the Florida Clemency Board. This is such an important cause that is has brought together left-leaning and right-leaning organizations: ACLU, Amnesty, and the American Bar Association together with Agudath Israel, the Orthodox Union and Chabad.

Florida's (in)justice system should be harshly condemned for its high rate of executions. If Florida authorities kill Grossman, he will be the 69th human being executed since the death penalty was reinstated in Florida in 1979. It is high time that Americans demand an end to this atrocious practice committed under the pretext of lawful proceedings. Perhaps this gross miscarriage of justice will awaken the above-mentioned right-leaning organizations to look beyond this particular case and join the struggle to impose a national moratorium on the death penalty.

Addendum:
Several media articles on this case highlight the "closure" arguments -- relatives of Margaret Park, the victim, have said that his execution will bring them "closure." This seems to be the justification for Grossman's execution. It may seem unfair to be judgmental of people grieving for a close relative killed during the prime of her life, but what kind of "closure" does the killing of another human being bring? How does the murder of defenseless person -- an inmate who has repented, expressed profound remorse, and does not pose a threat because he is locked up for life -- remedy the murder of Margaret Park? Read this excellent Washington Post article about executions and the closure myth.

Call Governor Crist at 850-488-5603 (His assistant Kristen is answering this phone and passing messages to the governor).

Urge Florida Governor to Save the Life of Martin Grossman!

2010-02-12T01:58:00.014-05:00

Death row inmate Martin Grossman is scheduled to be executed by Florida authorities on February 16 for a murder he committed more than 25 years ago. The death penalty is a primitive, shameful practice that needs to be abolished in this country. In essence, it is a license for states to murder criminals who are locked-up behind bars. Research shows it has no deterrent effect. It allows extinguishing human lives based on a criminal justice system that is prone to error, inaccuracies, prejudice, and racism.
But even supporters of the death penalty should strongly object to the impending execution of Mr. Grossman because of the gross injustice of this ultimate and irreversible punishment in his case. Grossman's life is now in the hands of Governor Charlie Crist, who should heed the calls of the ACLU, Amnesty, and other organizations and stay the execution, and ultimately grant him clemency.

According to the petition to save the life of Mr.Grossman, in 1984 Grossman was a 19-year-old drug-addict and high-school drop-out with a juvenile record for trespassing. He and a friend, Thanye Taylor, drove to an isolated nature reserve to fire a found handgun for fun. Meanwhile, Margaret Park, a wildlife officer, stopped them, searched their car and confiscated the gun. Martin, who is reported to have an IQ of 77 and a history of epilepsy, panicked and began pleading with the officer not to report him as he would be in violation of his probation. When she reached for her radio a struggle ensued, which resulted in the officer reaching for her own gun. Martin panicked, snatched her gun and fatally shot her.

A psychiatrist who evaluated him concluded, from his psychological and medical condition, that he could not have formed the intent to kill. The accomplice Taylor served less than three years in prison while Martin was sentenced to death. Grossman's petition argues that the death sentence meted out to him is disproportionate in the extreme and that his defense was inadequate.

The petition further argues that Martin's crime, considering the lack of premeditation, his drug addiction, his IQ level, and several other compelling factors does not qualify for the death penalty, and that the court ignored mitigating circumstances. Only four of thirty-three available defense witnesses were used in the sentencing phase. Additionally, there are allegations of prosecutorial misconduct as well. A fellow prisoner and key witness for the government swears that he lied at trial, and that he was rewarded by having his own charges dropped. Martin's appeals regarding these issues have been rejected without hearings, but they could be considered in a clemency petition. Read more about Grossman's case at the web site of Floridians for Alternatives to the Death Penalty.

This blog unequivocally condemns the state-sponsored barbarity known as the 'death penalty' and calls for its total abolishment. But, as Professor Alan Dershowitz points out, even those who support capital punishment would limit it to recidivists or people who ‎commit the most heinous of crimes. Martin Grossman fits neither of those categories. His crime, committed when he was a teenager, was unplanned, ‎unpremeditated and impulsive - the product of a serious mental illness, that can now be proved ‎by medical technology that was unavailable at the time of his sentencing.

Executing Martin Grossman is a terrible injustice. It would constitute a shameful act of violence and vengeance that serves no purpose. Help save Martin Grossman's life by asking Governor Crist (Phone: 850-488-7146 Fax: 850-487-0801) to grant clemency to Martin Grossman.

Template of letter to Governor Crist (Amnesty International USA)

Sometimes the Underdog Wins... and Inspires People!

2010-02-08T01:01:00.011-05:00

The prediction markets gave the New Orleans Saints only a 40.52% chance of winning Superbowl 44. Coming in to tonight's game, they were clearly the underdog. Even President Obama referred to them as the underdog team, saying "I guess I am rooting a little bit for the Saints as the underdog, partly just because when I think about what's happened in New Orleans over the last several years and how much that team means to them. You know, I'm pretty sympathetic."

But sometimes, like in the court system, the underdog actually wins. The Saints' upset 31-17 victory tonight over the Indianapolis Colts sent a message that can reverberate in many areas of life: Even when the odds are stacked against you - don't lose hope. Show determination and perseverance and keep your faith.

This principle applies to all those who are caught in the American judicial system. There's no guarantee you'll come out from the belly of this beast healthy or whole. No one can promise you justice, particularly because you're up against a harsh, bureaucratic system that prefers finality to fairness, judicial tradition to justice. But if you will be determined, focused, and committed to your cause - sometimes the underdog wins!

Congratulations Saints!

Suggestions for State of the Union Address

2010-01-27T12:54:00.005-05:00

Today, President Obama will deliver his first official State of the Union (SOTU) address. My prediction is that his speech will be mostly devoted to two major issues of domestic policy: health reform and economic growth - including poverty and unemployment. Of course, there will be the mandatory paragraphs about fighting terrorism and bringing terrorists and their enablers to justice (and, presumably, the speech will also attempt to explain where he's going with his Afghanistan policy). But I venture to guess that the major focus will be on the economic woes afflicting this country. High unemployment has taken an especially tough toll on men from all sectors of society. Its terrible impact is felt not only in the financial aspects of life, but in the family, social and communal realms as well. And the best way to lower unemployment and create job growth is a combination of conservative policies that encourage business expansion and liberal policies that emphasize generous retraining programs and government spending.

In previous articles, I have taken the liberty (or, perhaps, hutzpa) of suggesting certain themes or particular phrases for inclusion in the President's speech. Following this tradition, I will suggest a quote for the President's SOTU speech when he talks about the issues of welfare, government help, job creation, and economic growth. Robert F. Kennedy expressed very eloquently the danger of putting too much emphasis on welfare, and the reasons why government should focus on job creation, creating a sense of individual independence and personal effort. According to philosopher Michael Sandel, Kennedy believed that the solution to poverty was not a guaranteed income paid by the government, but -

dignified employment at decent pay, the kind of employment that lets a man say to his community, to his family, to his country, and, most important, to himself: 'I helped build this country, I am a participant in its great public ventures. I am a man.'

Against All Odds: Israeli Team Rescues Man After 10 Days

2010-01-25T03:50:00.002-05:00

The Israeli Search and Rescue Team saved the life of a French man who was buried under the rubble in Haiti for 10 days. AFP is reporting:

Rescuers pulled a 22-year-old man from the ruins of a building in Haiti's capital Friday, 10 days after an earthquake devastated the city, a statement from an Israeli military team said.

The man was transferred to an Israeli Defense Force field hospital in Haiti after being saved from the three-story structure near the presidential palace in Port-au-Prince and was in a stable condition, the statement said.

The search team was led to the trapped man's location by local residents, said the statement carried on the website of the Israeli Defense Force spokesperson. "American and French doctors were unable to rescue the trapped man and called upon the Israeli delegation's search and rescue teams who rescued the man within half an hour, from a tunnel, 2.5-3 meters long and were able to release him whole and healthy," rescue team member Major Zohar Moshe was quoted as saying.

And here is the video:

The Legacy of A Giant Man: Reflections on Dr. Martin Luther King's Day

2010-01-18T11:44:00.019-05:00

In celebrating Dr. Martin Luther King's Day, it is important to remember that Dr. King was concerned not just with civil rights and equality for black Americans but moral justice for all Americans and oppressed people of the world. In his famous Letter from Birmingham Jail, he coined the aphorism: "Injustice anywhere is a threat to justice everywhere." Expanding on this theme, he stated:

We are caught in an inescapable network of mutuality, tied in a single garment of destiny. Whatever affects one directly, affects all indirectly. Never again can we afford to live with the narrow, provincial "outside agitator" idea. Anyone who lives inside the United States can never be considered an outsider anywhere within its bounds.

In his famous speech Beyond Vietnam: A Time to Break Silence Dr King explained why he felt the need for clergy to speak out against Vietnam in the churches and synagogues. Dr. King said:

Somehow this madness must cease. We must stop now. I speak as a child of God and brother to the suffering poor of Vietnam. I speak for those whose land is being laid waste, whose homes are being destroyed, whose culture is being subverted. I speak for the poor of America who are paying the double price of smashed hopes at home and death and corruption in Vietnam. I speak as a citizen of the world, for the world as it stands aghast at the path we have taken. I speak as an American to the leaders of my own nation. The great initiative in this war is ours. The initiative to stop it must be ours.

Dr. King's legacy of fighting racism and oppression wherever they poison human relations was the theme at an inspiring interreligious and multicultural celebration that I attended several days ago at the National Synagogue. In a joint dinner and musical event with members of Word of God Baptist Church of Southeast, Washington DC, we honored the memory of Officer Stephen Johns, a black security guard, who gave his life in defense of innocent visitors at the United States Holocaust Museum.

Following the dinner, we held a spiritual service in honor of Dr. King which included music and inspirational words from Pastor McCoy (from the Word of God Baptist Church) and Rabbi Shmuel Herzfeld (from the National Synagogue). In a very emotional moment, the Rabbi presented Zakiah Johns - widow of Officer Johns - with a special memento: a shofar. Former Secretary of Defense William Cohen and his wife Janet Langhart Cohen - an interracial couple - addressed the joint congregations with moving speeches about the need to fight institutionalized racism. Mr. Cohen pointed out that until 1967 - when the Supreme Court finally ruled in Loving v. Virginia that the ban on interracial marriage is unconstitutional - his own marriage would not have been possible. His wife Janet talked about Anne & Emmett - a play she authored featuring an imaginary conversation between Anna Frank and Emmett Till.

Dr. King's last speech, I See the Promised Land, is one of his most memorable speeches. King was exhausted that night, April 3, 1968, having gone down to Memphis in support of sanitation workers who were on strike demanding better pay. He begged off speaking but finally agreed to address the audience at the Bishop Charles Mason Temple Church of God. His final words are chilling to read even today:

Like anybody, I would like to live a long life. Longevity has its place. But I'm not concerned about that now. I just want to do God's will. And He's allowed me to go up to the mountain. And I've looked over. And I've seen the Promised Land. I may not get there with you. But I want you to know tonight, that we, as a people, will get to the Promised Land!

The next day, an assassin's bullet killed Martin Luther King but did not kill his dream and the movement he lead. He was just 39. Had he lived, this would be his 81st birthday, and he would have heard the first black US president address the congregants gathered at Vermont Baptist Church in Washington DC and say:

We've inherited the progress of unjust laws that are now overturned. We take for granted the progress of a ballot being available to anybody who wants to take the time to actually vote. We enjoy the fruits of prejudice and bigotry being lifted -- slowly, sometimes in fits and starts, but irrevocably -- from human hearts. It's that progress that made it possible for me to be here today; for the good people of this country to elect an African American the 44th President of the United States of America.

A Prayer for the Injured and Homeless in Haiti

2010-01-15T01:06:00.008-05:00

Disaster in Haiti.
The devastating 7.0 earthquake has caused thousands of deaths and widespread destruction. The number of casualties is currently estimated at 50,000 but is expected to be higher. On a forward-looking note, the United States government, mainly through USAID, is leading a massive aid operation, sending food, water, medical supplies, and search-and-rescue equipment to the ravaged island. Many other countries have sent teams too. Israel has sent a relief package that includes a field hospital and a rescue unit (see video of the Israeli team here).

Believers can add a special prayer for the health and welfare of the the tens of thousands of injured and homeless people. In Jewish tradition, it is customary to recite a public prayer for the sick during the Shabbat morning prayers in synagogue. This prayer, usually said following the reading of the weekly Torah portion, is known in Hebrew as mi she'berach la'holim. Here is the traditional prayer, with slight adaptations to the current terrible tragedy, that I have brought to my synagogue this Shabbat:

PRAYER FOR HEALTH AND WELFARE OF HAITI EARTHQUAKE SURVIVORS

He who blessed our forefathers Abraham, Isaac and Jacob, Moses and Aaron, David and Solomon - may He bless and heal the sick and injured in Haiti because we will contribute to charity on their behalf. In reward for this, may the Holy One, Blessed is He, be filled with compassion for them to restore their health, to heal them, to strengthen them, to revivify them, and provide them with food, water, medicine and shelter. And may He send them speedily a complete recovery from heaven for their two hundred forty-eight organs and three hundred sixty-five blood vessels, among the other sick people of the world, a recovery of the body and a recovery of the spirit, swiftly and soon. Now let us all say: Amen.

Racial Profiling & Transportation Security - Learning From the Israeli Experience

2010-01-12T11:22:00.018-05:00

The failure of the American intelligence agencies to prevent the attempted bombing of Northwest Airlines Flight 253 on Christmas day is mind-boggling. Given that the Nigerian terrorist raised so many red flags in advance of his actual boarding, the failure of American authorities to stop Umar Farouk Abdulmutallab from boarding the airplane is a shanda.

Among the many redolent clues lying about before the plane took off were the following facts:

Abdulmutallab's father - a prominent Nigerian banker - warned the State Department that his son is being radicalized and had gone to Yemen;
British authorities rejected his visa renewal request, and put him on a watch list;
Abdulmutallab purchased a one-way ticket with cash;
no luggage;
An intercepted communication that US authorities had concerning a plot involving "the Nigerian" in Yemen.

Yet despite these warning signs, the American authorities and Northwest airlines allowed him to board a US-bound airplane. What gives serious cause for concern is not so much the now-famous "failure to connect the dots" (endorsed by President Obama), but the systemic failure of American law enforcement agencies to implement proper security policies and procedures. Because some law enforcement agencies are investing their resources in the wrong places and focusing on imaginary enemies, it is not surprising that they failed to focus on the real enemies.

It is time that American authorities consider what the Israeli security forces have long been implementing - unofficial, subtle profiling based on experience, logic and common sense. It is well-known that Israelis are world experts in transportation security. What is less obvious is that they use a variety of overt and covert methods, including the "politically-incorrect" racial profiling, to provide the best security procedures. Because they are also sensitive to privacy and civil rights issues, Israeli authorities often have to balance between security demands and civil rights and equality concerns, but they always prefer to err on the side of caution.

The Israeli law enforcement and intelligence agencies apply the following operating principles:

Keep policies and procedures confidential because making them public automatically allows the terrorists to figure out ways to circumvent the system.
Maintain a highly-trained security and intelligence apparatus, and allow security personnel wide discretion, including to conduct strip-searches, but not without supervision.
Ask tons of questions, including what the Americans would consider "politically-incorrect" questions dealing with the person's background, education, previous travels, associations, and political activities.
When in doubt, there is no doubt, i.e. prevent entrance/boarding first, and continue further questioning later. If it later becomes clear the person was denied boarding with no basis - they can be compensated monetarily.

Indeed, as an Israeli attorney, I represented a Jewish client who was denied boarding to an El Al flight based on her associations with Palestinian activists. We filed suit in an Israeli court. Realizing that a misunderstanding occurred, El Al settled and compensated her nicely. It turns out that the El Al security officials acted in a cautious way, perhaps overly cautious, but definitely legal. One cannot blame El Al officials for giving more weight to the security of the hundreds of passengers than to the possible civil rights concerns of one passenger who had some issues. And whatever anguish and inconvenience was suffered by my client was later remedied by significant monetary compensation without much legal hassle.

In May 2007, the Association for Civil Rights in Israel filed a petition to the High Court of Justice (HCJ 4797/07) requesting the Court to issue an injuction directed at the Israel Airports Authority and the Shin Bet Security Services "to cease determining the extent and scope of security checks that an Israeli citizen must undergo at airports based on the person's ethnic or national origin" (read the petition in Hebrew here).

The State Attorney justifiably refused to publicly release the procedures of the Israeli security agencies. As a result, this petition has been hanging in the Court for years without going anywhere. While the petition raises many valid arguments, claiming that the balance of interests in light of Basic Law: Human Dignity and Liberty must tilt toward eliminating racial profiling, I believe the Court will reject the petition. My prediction is that:
a) the Court will not force the Israeli intelligence and security agencies to reveal their methods and procedures, and
b) to the extent that the publicly-available evidence suggests there is racial profiling, the Justices will hold that as long as the questioning and searches, including strip-searches, are conducted in private and with utmost respect and dignity, they will not prohibit employing these practices based on racial profiling, and refuse to second-guess the security personnel on issues that are paramount to insure the safety of millions of passengers.

When Money Isn't Enough: Wrongfully-Convicted Man Freed After 27 Years in Jail

2009-12-18T11:26:00.011-05:00

The Washington Post lead editorial today decries the grave injustice suffered by Donald Gates, who was set free this week after being jailed for 27 years for a murder he didn't commit.

Twenty seven years ago, Gates was convicted and sentenced to life in prison for the murder of a Georgetown University female student. This week D.C. Superior Court judge Fred Ugast released him from jail, after DNA tests revealed that another man committed the crime. Tonight the judge formally exonerated him.

Who is to blame for the wrongful conviction and decades-long incarceration of an innocent man? The Washington Post points the finger at the two factors responsible for this travesty - FBI agents' false testimony and prosecutorial misconduct:

Key to the prosecution's case was the testimony of FBI Special Agent Michael Malone that two pubic hairs found on the woman's body were microscopically identical to a sample taken from Mr. Gates . . . Why the government -- as a matter of policy -- didn't alert the defense to doubts raised in 1997, when the inspector general concluded that Mr. Malone had provided false testimony, or in 2002, when it determined his work was material to Mr. Gates' conviction?

When prosecutors discover evidence that might be exculpatory, they are required - under Brady vs. Maryland - to notify the defense and hand it over to the defendant's lawyer. But while prosecutors had every reason to believe -- already back in 1997 -- that a miscarriage of justice occurred in this case, they denied this evidence from the defense and let Gates languish in prison for another 12 years. This prosecutorial misconduct - on top of the original sin of the FBI agent's false testimony - led to a terrible injustice, causing an innocent man to suffer irreparable harm for dozens of years.

On the issue of compensation, the Post notes that Gates will be able to make a claim for compensation for the time spent in prison, and mentions that federal law provides for up to $50,000 per year of incarceration. But Gates may be able to receive a much more substantial amount if he files a claim under 42 U.S.C. 1983 [1]. To succeed in a Section 1983 claim, the plaintiff (in this case Mr. Gates) must prove a constitutional violation by a state actor. Generally, these claims can succeed if the wrongfully-convicted person can show proof of malicious prosecution, extraction of involuntary confession, or a violation of Brady vs. Maryland. It seems from the facts of this case that Gates has a prima facie valid Section 1983 lawsuit. But whether or not Gates is successful in bringing a Section 1983 civil rights lawsuit, the Post is correct in concluding that "as much as Mr. Gates gets, it won't be enough."

The Washington Post commends the valiant efforts of Gates' court-appointed attorney, Roger Durban, and the DC Public Defender Service which took up his case. Two DC police officers who tracked down long-lost evidence that helped exonerate Gates are also credited. But what if Gates did not have such a determined attorney? What if the evidence from the victim's body in the medical examiner's office could not be located? How many more wrongfully-convicted people are still languishing in criminal-justice system? And how many have been wrongfully executed?

This case highlights the need for legislation that will guard against the possibility of convicting - and especially of executing - the innocent. Given the increasing frequency of innocents being exonerated and released[2], death penalty states should declare moratoria on capital punishment. But in addition to reforming the system and ensuring DNA testing - including post-conviction testing- to all criminal defendants, the state and federal governments must address all the systemic defects, including faulty science, prosecutorial and police misconduct, racial prejudice, inadequate defense counsel, snitches, faulty eyewitness testimony and mental incompetence, that lead to the high incidence of wrongful conviction.

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[1] Civil Rights Act of 1871, 42 U.S.C. 1983 (2000). Under this law, individuals can bring lawsuits for damages against any official who, acting under color of state law, deprives that individual of a constitutional right.

[2] In the same week, James Bain from Florida, who was imprisoned for 35 years for kidnapping and rape, was freed after DNA tests proved his innocence.

Give Juveniles A Chance!

2009-11-08T20:30:00.015-05:00

Tomorrow (Monday) the Supreme Court will hear oral argument in a pair of cases from Florida, Graham v. Florida and Sullivan v. Florida, in which defense attorneys will ask the Court to find that sentencing juvenile defendants to life in prison without parole violates the Eighth Amendment's proscription against "cruel and unusual punishment."

More than four years ago, a divided Supreme Court ruled 5-4 vote in Roper v. Simmons that executing those who committed murder while they were under 18, is unconstitutional because it violates the "cruel and unusual punishment" clause, applicable to the states through the Fourteenth Amendment. Anthony M. Kennedy, writing for the majority, explained:

The reality that juveniles still struggle to define their identity means it is less supportable to conclude that even a heinous crime committed by a juvenile is evidence of irretrievably depraved character . . . . From a moral standpoint, it would be misguided to equate the failings of a minor with those of an adult, for a greater possibility exists that a minor's character deficiencies will be reformed.

Tomorrow, attorneys for two juveniles will ask the Court to apply the same reasoning in examining the penultimate punishment for juveniles - life without parole. In two separate cases, defendants Joe Sullivan and Terrance Graham were sentenced in Florida to life without parole (LWOP) for nonhomicide crimes at ages 13 and 17, respectively. The petitioners in both cases, joined by a myriad of non-profit organizations and experts in juvenile delinquency, argue that LWOP is almost the equivalent of death as it gives the juvenile offender no chance of relief or release or hope, and thus should be ruled unconstitutional.

Sentencing minors who commit crimes to life without the possibility of parole is a grossly disproportionate punishment that flies in the face of basic considerations of justice and morality. While there is no doubt that when juveniles commit a heinous crime they deserve to be punished with the full force of the law, the sentence must take into account their age and should be tailored to serve the following two goals: protecting society and achieving the rehabilitation of the young offender.

Denying juvenile offenders the possibility of ever going before a parole board means depriving them of the chance for repentance and rehabilitation. Locking up a child for a crime and throwing away the key is tantamount to treating him or her as "irreparably damaged goods." As many amicus briefs filed in support of the defendants argue, there is not a shred of evidence to support this approach. Indeed, based on scientific studies, the opposite is true. Research has shown that there are fundamental neurological, psychological and behavioral differences between children and adults, and there is no way to predict at the time of sentencing whether a young person will turn out "good" or "bad." Accordingly, LWOP serves no justifiable purpose, and is an overly harsh and punitive measure that should be prohibited by the Constitution.

One of the more compelling amicus briefs filed on behalf of Sullivan and Graham was written on behalf of a group of former juvenile offenders who later achieved success, including actor Charles Dutton and former U.S. Senator (R-Wyoming) Alan K. Simpson. Dutton stabbed a person to death in a street fight at age 17, while Simpson committed arson on federal property, punched a cop, and--in his own words-- "was a monster." In their amici curiae brief, Dutton and Simpson describe how important it was for their rehabilitation to have the potential to regain their freedom, to know that society still believes in them. Knowing they had a chance, they used the time in prison to resolve to do things differently and change course. Although they made terrible mistakes as teenagers, they are now successful adults. The amici - Friends of the Court - are "living, breathing testaments to the resiliency, adaptability, and rehabilitative potential of juvenile offenders," which is why they are joining petitioners in asking the court to rule that it is fundamentally inhumane to give up on a youthful offender.

A tremendous amount is at stake in these cases, in view of the fact that life imprisonment without parole extinguishes any hope for young offenders. Imprisoning juveniles for LWOP is not only fundamentally inhumane but is also contrary to the standards of a widely-accepted international treaty safeguarding the rights of children. Article 37(a) of the United Nations Convention on the Rights of the Child (“CRC”) prohibits not only sentencing juveniles to death, but also sentencing juveniles to “life imprisonment without the possibility of release.” The CRC has been ratified by 192 nations; only the United States and Somalia have not ratified it. It is high time that United States courts adopt a legal standard to juvenile offenders that has been the accepted norm in the overwhelming majority of countries in the civilized world.

From a philosophical and moral standpoint, the Supreme Court must respect the humanity of children, and recognize that as young human beings they will always have the potential for change. LWOP denies a fundamental truth, namely that youth offenders -- no matter what crimes they committed -- are ingrained with the potential to repent, mend their ways and join society as law-abiding citizens. As John Steinbeck wrote so beautifully here, a cat has no choice, a bee must make honey. There’s no godliness there. But the potential for change is what makes human beings great, and gives them stature with the gods. For even in their weakness and filth and crimes, they have still the great choice. They can choose their course and fight it through and win. But juvenile offenders can win only if the US Supreme Court articulates a clear-cut rule banning this form of "cruel and unusual punishment," and gives them back their inalienable rights to repentance, rehabilitation and liberty.

Kudos to Ex-Police Chief For Public 'Mea Culpa' Message

2009-11-02T22:30:00.015-05:00

One day he was the Chief of Police in Alexandria, VA; the next day he was sitting in jail on charges of driving under the influence of alcohol (DUI). Now David P. Baker, former Alexandria police chief who was sentenced to 5 days in jail, a $300 fine, and a 1-year license suspension after colliding with another vehicle while driving under the influence, has begun a campaign to help others learn from his arrest and conviction. He could have kept silent and shied away from public exposure, hoping the public would eventually forget this episode. But he chose a boldly different path. He has turned his terrible mistake for which he paid dearly (lost his job and will never work for the government again) into a transformative and educational experience. He is featured in a YouTube video - where he talks openly about his personal embarrassment and humiliation, the "forty years that went down the tubes" in one incident, and the mistake that will "forever haunt" him. A powerful message:

See also the Washington Post article in which he sums it up:

There isn't a day that goes by where I don't have a period of sadness. The consequences are devastating.

The Fox News Brouhaha and the Tower of Babel Story

2009-10-24T14:49:00.014-04:00

The brouhaha this week over the White House's attempt to marginalize or boycott the Fox News network has elicited strong criticisms from right-wing commentators, among them the Washington Post's Charles Krauthammer.

When White House spokeswoman Anita Dunn claimed that Fox is "opinion journalism masquerading as news" and tried to boycott them by preventing Ken Feinberg, the executive pay czar, from giving interviews on Fox, she acted wrongly. The Biblical story of the Tower of Babel, read in this week's parasha Noah, illustrates why her approach is a grave mistake.

In the Tower of Babel episode, the Torah recounts the story of the people who angered God by congregating and building a tower with its top in the sky. It opens with the following verse:

And the whole earth was of one language and of one speech.
Genesis 11:1

The Torah then describes how the people settled in the valley of Shinar and built a city and a tower with its top in the sky "to make a name for ourselves, else we shall be scattered all over the world." God descends, views the tower they had built, and states:

If, as one people and one language for all, this is how they have begun to act, then nothing that they may propose to do will be out of their reach. Id. 11:5

Accordingly, God confounded their language, and decreed that there shall be separate languages, causing confusion and conflict which would prevent them from ever congregating again. In addition, He scattered them over the face of the whole earth.

Why was building the tower a sin?

At first glance, it seems the tower builders committed a sin and God punished them for it. The Biblical text, however, does not specify what was the tower builders' sin. Furthermore, it is not clear what motivated God to confound their languages and disperse them in all directions. In the absence of a clear Scriptural reasoning, the commentators struggled to explain God's actions. While reading the story, one cannot escape the burning question: What is wrong with the desire to seek technological innovations and celebrate human ingenuity?

A midrash - rabbinic legend - attempts to answer this quandry by relating that the people paid no attention if a worker on the tower fell to his death. If a brick fell, however, they lamented the delay in their building project. The obsession to achieve a technological feat caused the people to lose their moral bearings, and treat human life - particularly the lives of menial, day-laborers - as insignificant. Under this interpretation, it's a story of people becoming enamored with improving technology and conquering their environment that human values are lost. This lesson is relevant today as much as - if not more than - it was thousands of years ago.

But this story may be significant not because of the attempt to construct a tower. Perhaps, the original sin refers back to what is stated at the opening of this story, that "the whole earth was of one language and of one speech." It appears that the root of the sin of this generation was not the building of a city or tower, but the aim to use these artificial means to ensure a situation of "one language and one speech" - of centralization, which in modern parlance would be known as totalitarianism.

Many naive people believe that we should strive for a situation of one language and the same ideas - where everyone subscribes to the same ideas. They envision the following ideal situation: all of humanity a single bloc, without differentiation, and as a result, without conflicts. But this story tells us that this situation is, in reality, a grave threat: there is nothing more dangerous to society than this artificial conformism. The city and the tower in this story are the symbols of the concentration of all mankind about a single topic -- where there will be no differences of opinion and there will be no struggle over different viewpoints and values. One cannot imagine greater tyranny than that.

God's decree to separate the languages and disperse the people is, thus, a compassionate act for mankind, aimed at preventing totalitarianism of complete unity. This act ensured that society is blessed with differences and contrasts, differentiation of thought and differentiation of values. It is essential for humanity that people have to struggle for their values and for their goals which differ one from the other.

In the same fashion, the current culture war between right and left in this country is a blessing. It is part and parcel of a thriving and healthy public debate that needs to exist in a democracy. Fox Network is a vital component - like it or not - in this battle for ideas and values. It is not the government's role to meddle in this culture and policy war and start boycotting news networks, attempting to create unity and conformity. As in the Tower of Babel story, such a policy makes one wonder whether the government has caught a whiff of totalitarianism.

It's up to the citizenry to select and grade their media outlets. If certain media organizations are guilty of biased and slanted reporting, the citizens have the option, perhaps even the duty, to boycott them. The government must not intervene and should not leverage its power to delegitimize or impose sanctions on certain news organization, lest it be accused of dangerous centralization of power and stifling of criticism. Leave it to the public to realize that, like in everything in life, there's quality journalism and there's sensational and hysterical journalism. We are mature enough to select what we read and view from a multitude of media sources that must be allowed to compete in the proverbial "marketplace of ideas."

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Sources:
JPS Hebrew-English Tanakh
Midrash Breishit Rabbah
Yeshayahu Leibowitz, Accepting the Yoke of Heaven, Urim Publications 2002

The 809 Area Code Scam

2009-10-21T10:09:00.007-04:00

Be cautious when responding to e-mails or phone calls from the 809, 284 or 876 area codes.

The scammers try to get you to call an area code that is outside the United States by telling you that it is important that you call a certain 809 number. Often they will say that it's important because a family member has been ill or has died, or they will lure you by promising that you've won a wonderful prize, etc. In each case, you are told to call the 809 number right away.

Because people are susceptible to such psychological manipulations, they often return these calls without realizing they are making long-distance, international phone calls.

You should realize that if you call from the U.S., you will incur extremely high charges on your phone bill, and this is a scam.

WHY IT WORKS:

The 809 area code scam works because a few regions outside the U.S., including the Caribbean and Canada, can be dialed directly without the usual "011" international prefix. "809" is the area code of the Dominican Republic. "284" is the area code of the British Virgin Islands. "876" is the area code of Jamaica. Since these numbers aren't subject to U.S. laws, there is no legal requirement to inform callers in advance of any special rates or fees.

The charges afterward can become a real nightmare. That's because the person actually made the call. You can complain, but both your local phone company and your long distance carrier will not want to get involved, and will most likely tell you that they are simply providing the billing for the foreign company. You'll end up dealing with a foreign company that argues they have done nothing wrong.

IN SUMMARY:

Do not call these numbers.
Check the location of unfamiliar area codes before dialing. This can be done by querying the NANPA website (North American Numbering Plan Administration).
Carefully read your telephone bill. Make sure that you only receive charges from your provider of choice, and ensure you thoroughly understand charges listed on your phone bill.
If you have been scammed - do not pay. Consult first with an attorney for the steps that need to be taken, and pursue legal recourse that may help you in avoiding payment for fraudulent charges or reimbursement for payments made.

AT&T VERIFICATION:
http://www.att.com/gen/press-room?pid=6045

SNOPES VERIFICATION:
http://www.snopescom/fraud/telephone/809.asp

Please send this information to your friends, family and colleagues to alert them to this scam.

The Glory of Choice - That Which Makes Man Great

2009-10-19T13:12:00.020-04:00

You would not expect to find a fascinating Biblical exegesis in a John Steinbeck novel.

But that is precisely what we find in his 1952 novel East of Eden, set in the rich farmlands of California's Salinas Valley. The novel follows the intertwined destinies of two families--the Trasks and the Hamiltons--whose generations helplessly reenact the fall of Adam and Eve and the poisonous rivalry of Cain and Abel. Drawing upon analogies from these Biblical stories, Steinbeck brought to life old texts and poured new meaning into them. In one of the chapters, there is a particular verse from the Cain and Abel story that is discussed in great detail. The Cain and Abel drama was part of this week's Torah portion - Parashat Breishit - and it is a great opportunity to analyze the paragraphs from Steinbeck's novel which teach us an insightful lesson.

When Cain becomes aware of God's seemingly unfair rejection of his offering, compounded with the acceptance of his brother Abel's offering, Cain is distraught and angry ("Cain was much distressed and his face fell" - Genesis 4:6). God warns him. God's warning to Cain contains a vivid metaphor - that "sin lies at the door" waiting to tempt Cain but Cain must overcome it. As we very well know, Cain failed the test, and murdered his brother. But what exactly was the meaning of the warning? Here is the verse as it appears in the original Hebrew:

הֲלוֹא אִם-תֵּיטִיב, שְׂאֵת, וְאִם לֹא תֵיטִיב, לַפֶּתַח חַטָּאת רֹבֵץ

וְאֵלֶיךָ תְּשׁוּקָתוֹ וְאַתָּה תִּמְשָׁל בּוֹ

The King James Version translates this verse as follows:

If thou doest well, shalt thou not be accepted?
And if thou doest not well, sin lieth at the door.
And unto thee shall be his desire, and thou shalt rule over him.
(Genesis 4:7)

"Thou shalt rule over him [over sin]" - was that a promise, an order, or a reference to Cain's potential to overcome sin? In one of the most famous passages of the book, Steinbeck authors a fascinating dialogue that compellingly addresses this very question. The focus of the conversation is what is the correct translation of the last three words of God's warning to Cain:
ve'ata timshol bo - thou shalt rule over him.

There is a Chinese worker named Lee who came across this verse in the English Bible. He wants to understand what the word "timshol" means. So he goes to study Hebrew for years in order to understand that one word! His conclusion at the end of the study is very deep and perceptive.

Without further ado, here is the full passage from East of Eden:

“Do you remember when you read us the sixteen verses of the fourth chapter of Genesis and we argued about them?”

“I do indeed. And that’s a long time ago.”

"Ten years nearly," said Lee. “Well, the story bit deeply into me and I went into it word for word. The more I thought about the story, the more profound it became to me. Then I compared the translations we have—and they were fairly close. There was only one place that bothered me. The King James version says this—it is when G-d has asked Cain why he is angry. G-d says, ‘If thou doest well, shalt thou not be accepted? and if thou doest not well, sin lieth at the door. And unto thee shall be his desire, and thou shalt rule over him.’ It was the ‘thou shalt’ that struck me, because it was a promise that Cain would conquer sin.”

Samuel nodded. “And his children didn’t do it entirely,” he said.

Lee sipped his coffee. “Then I got a copy of the American Standard Bible. It was very new then. And it was different in this passage. It says, ‘Do thou rule over him.’ Now this is very different. This is not a promise, it is an order. And I began to stew about it. I wondered what the original word of the original writer had been that these very different translations could be made.”

Samuel put his palms down on the table and leaned forward and the old young light came into his eyes. “Lee,” he said, “don’t tell me you studied Hebrew!”

Lee said, “I’m going to tell you. And it’s a fairly long story. Will you have a touch of ng-ka-py?”

“You mean the drink that tastes of good rotten apples?”

“Yes. I can talk better with it.”

“Maybe I can listen better,” said Samuel.

While Lee went to the kitchen Samuel asked, “Adam, did you know about this?”

“No,” said Adam. “He didn’t tell me. Maybe I wasn’t listening.”

Lee came back with his stone bottle and three little porcelain cups so thin and delicate that the light shone through them. “Dlinkee Chinese fashion,” he said and poured the almost black liquor. “There’s a lot of wormwood in this. It’s quite a drink,” he said. “Has about the same effect as absinthe if you drink enough of it.”

Samuel sipped the drink. “I want to know why you were so interested,” he said.

“Well, it seemed to me that the man who could conceive this great story would know exactly what he wanted to say and there would be no confusion in his statement.”

“You say ‘the man.’ Do you then not think this is a divine book written by the inky finger of God?”

“I think the mind that could think this story was a curiously divine mind. We have had a few such minds in China too.”

“I just wanted to know,” said Samuel. “You’re not a Presbyterian after all.”

“I told you I was getting more Chinese. Well, to go on, I went to San Francisco to the headquarters of our [Chinese] family association. Do you know about them? Our great families have centers where any member can get help or give it. The Lee family is very large. It takes care of its own.”

“I have heard of them,” said Samuel.

“You mean Chinee hatchet man fightee Tong war over slave girl?”

“I guess so.”

“It’s a little different from that, really,” said Lee. “I went there because in our family there are a number of ancient reverend gentlemen who are great scholars. They are thinkers in exactness. A man may spend many years pondering a sentence of the scholar you call Confucius. I thought there might be experts in meaning who could advise me.

“They are fine old men. They smoke their two pipes of opium in the afternoon and it rests and sharpens them, and they sit through the night and their minds are wonderful. I guess no other people have been able to use opium well.”

Lee dampened his tongue in the black brew. “I respectfully submitted my problem to one of these sages, read him the story, and told him what I understood from it. The next night four of them met and called me in. We discussed the story all night long.”

Lee laughed. “I guess it’s funny,” he said. “I know I wouldn’t dare tell it to many people. Can you imagine four old gentlemen, the youngest is over ninety now, taking on the study of Hebrew? They engaged a learned rabbi. They took to the study as though they were children. Exercise books, grammar, vocabulary, simple sentences. You should see Hebrew written in Chinese ink with a brush! The right to left didn’t bother them as much as it would you, since we write up to down. Oh, they were perfectionists! They went to the root of the matter.”

“And you?” said Samuel.

“I went along with them, marveling at the beauty of their proud clean brains. I began to love my race, and for the first time I wanted to be Chinese. Every two weeks I went to a meeting with them, and in my room here I covered pages with writing. I bought every known Hebrew dictionary. But the old gentlemen were always ahead of me. It wasn’t long before they were ahead of our rabbi; he brought a colleague in. Mr. Hamilton, you should have sat through some of those nights of argument and discussion. The questions, the inspection, oh, the lovely thinking—the beautiful thinking."

“After two years we felt that we could approach your sixteen verses of the fourth chapter of Genesis. My old gentlemen felt that these words were very important too—‘Thou shalt’ and ‘Do thou.’ And this was the gold from our mining: ‘Thou mayest.’ ‘Thou mayest rule over sin.’ The old gentlemen smiled and nodded and felt the years were well spent. It brought them out of their Chinese shells too, and right now they are studying Greek.”

Samuel said, “It’s a fantastic story. And I’ve tried to follow and maybe I’ve missed somewhere. Why is this word so important?”

Lee’s hand shook as he filled the delicate cups. He drank his down in one gulp. “Don’t you see?” he cried. “The American Standard translation orders men to triumph over sin, and you can call sin ignorance. The King James translation makes a promise in ‘Thou shalt,’ meaning that men will surely triumph over sin. But the Hebrew word, the word timshel—‘Thou mayest’— that gives a choice. It might be the most important word in the world. That says the way is open. That throws it right back on a man. For if ‘Thou mayest’—it is also true that ‘Thou mayest not.’ Don’t you see?”

“Yes, I see. I do see. But you do not believe this is divine law. Why do you feel its importance?”

“Ah!” said Lee. “I’ve wanted to tell you this for a long time. I even anticipated your questions and I am well prepared. Any writing which has influenced the thinking and the lives of innumerable people is important. Now, there are many millions in their sects and churches who feel the order, ‘Do thou,’ and throw their weight into obedience. And there are millions more who feel predestination in ‘Thou shalt.’ Nothing they may do can interfere with what will be. But ‘Thou mayest’! Why, that makes a man great, that gives him stature with the gods, for in his weakness and his filth and his murder of his brother he has still the great choice. He can choose his course and fight it through and win.” Lee’s voice was a chant of triumph.

Adam said, “Do you believe that, Lee?”

“Yes, I do. Yes, I do. It is easy out of laziness, out of weakness, to throw oneself into the lap of deity, saying, ‘I couldn’t help it; the way was set.’ But think of the glory of the choice! That makes a man a man. A cat has no choice, a bee must make honey. There’s no godliness there. And do you know, those old gentlemen who were sliding gently down to death are too interested to die now?”

Adam said, “Do you mean these Chinese men believe the Old Testament?”

Lee said, “These old men believe a true story, and they know a true story when they hear it. They are critics of truth. They know that these sixteen verses are a history of humankind in any age or culture or race. They do not believe a man writes fifteen and three-quarter verses of truth and tells a lie with one verb. Confucius tells men how they should live to have good and successful lives. But this—this is a ladder to climb to the stars.” Lee’s eyes shone. “You can never lose that. It cuts the feet from under weakness and cowardliness and laziness.”

Adam said, “I don’t see how you could cook and raise the boys and take care of me and still do all this.”

“Neither do I,” said Lee. “But I take my two pipes in the afternoon, no more and no less, like the elders. And I feel that I am a man. And I feel that a man is a very important thing—maybe more important than a star. This is not theology. I have no bent toward gods. But I have a new love for that glittering instrument, the human soul. It is a lovely and unique thing in the universe. It is always attacked and never destroyed— because ‘Thou mayest.’”

Addendum:

Having done some more research on the translation issue, I found a translation that incorporates Steinbeck's profound and timeless interpretation of this verse. The JPS 1917 edition, which predates Steinbeck's novel, has this translation:

If thou doest well, shall it not be lifted up? and if thou doest not well, sin coucheth at the door; and unto thee is its desire, but thou mayest rule over it.

Was Steinbeck aware of this translation? We don't know. Had he done some more research, he could have probably found it. Certainly, though, a reference to an existing translation would have been anti-climactic. Steinbeck's above-mentioned story is so much more dramatic and enlightening because the Chinese sages discover this translation by themselves - after years of studying Hebrew and pondering the meaning and significance of this story. Now that is truly a role model of good Biblical exegesis!

Supreme Court's 2009-2010 Term Begins -- Justices Will Decide Fascinating Questions on First and Second Amendments

2009-10-05T11:35:00.028-04:00

The Supreme Court begins its new term today, with a docket of cases raising a diverse set of issues including corporate political spending, dog-fighting videos, a cross erected on federal land, and whether the Second Amendment - the one that guarantees "a right to keep and bear arms" and was interpreted last term in District of Columbia v. Heller as protecting an individual right to gun ownership - is to be broadened so that it curbs state, county and city gun laws, and not just those enacted at the federal level.

The court will also consider major arguments involving whether juvenile offenders can be sentenced to life without parole for crimes such as rape or robbery; whether a prosecutor can be sued for winning a conviction by procuring false testimony; and whether a state program to replenish eroded beaches for public use unconstitutionally deprives coastal property owners of their private ocean access.

Cases on First Amendment

Oct. 6 - United States v. Stevens

Issue: Whether a statute criminalizing the depiction of animal cruelty - 18 U.S.C. 48 - is unconstitutional under the Free Speech Clause of the First Amendment?

Congress banned such portrayals in 1999 by passing 18 U.S.C. § 48 which prohibits the knowing creation, sale, or possession of depictions of animal cruelty with the intent to place them in interstate commerce for commercial gain. In 2005, Robert Stevens was convicted under the law for selling videotapes of fighting pit bulls and sentenced to 37 months in prison. The Third Circuit - sitting en banc - vacated his conviction [court decision], ruling that the law violated the free-speech clause of the US Constitution, and refusing the government's request to create a new category of unprotected speech. The Third Circuit noted that the Supreme Court last declared an entire category of speech unprotected by the First Amendment in 1982 -- when it unanimously decided in New York v. Ferber that the First Amendment right to free speech did not forbid states from banning the sale of material depicting child pornography. In Stevens' case, the Third Circuit rejected the government's argument that the depiction of animal cruelty was analogous to the depiction of child pornography.

In its appeal to the Supreme Court, the government argues that like child pornography, depictions of animal cruelty are not protected by the First Amendment and can be banned because they contain no redeeming content and might fuel a market that encourages further harm to animals.

Oct. 7 - Salazar v. Buono

Issue: Whether an individual has standing to bring an Establishment Clause suit challenging the display of a cross on government land, and, if an Act of Congress directing the land be transferred to a private entity is a permissible accommodation?

The First Amendment of the US Constitution provides in the relevant part:

Congress shall make no law respecting an establishment of religion.

The interpretation of this cornerstone of American democracy, also known as the "Establishment Clause" of the Constitution, will be at the heart of the legal discussion in the case of a Latin cross erected on federal land as a memorial for World War I soldiers. Not surprisingly, this case has garnered national media attention because - as with all separation-of-church-and-state cases - the stakes are high and emotions run strong.

The question is whether building and maintaining an unmistakable religious symbol of a particular religion on federal land violates the First Amendment's Establishment Clause prohibiting the government from endorsing a particular religion.

A district court ruled that the cross - sitting atop a prominent rock outcropping known as "Sunrise Rock" in the Mojave National Preserve - violates the Constitution's Establishment Clause. Congress, however, voted to block removal of the cross by park officials, and attempted to create a workaround by legislating an Act that directed that the particular piece of property upon which the cross is erected be transferred to a private entity. Later, the Ninth Circuit ruled [court opinion] that maintaining a Christian symbol on public property suggested an unconstitutional government endorsement, even after the land exchange. The Court rejected this attempted workaround, ruling that it's a "sham transaction" and holding that based on the government’s ongoing supervisory, maintenance and oversight responsibilities with respect to the cross and the property, the government retains important property rights in, and “will continue to exercise substantial control over,” the property on which Sunrise Rock is located. It thus remains an unconstitutional government endorsement of a particular religion, and the cross must be removed or replaced with a non-sectarian symbol.

The Department of Interior appealed from the Ninth Circuit ruling, and in two days, the Supreme Court will hear oral arguments in this case. Commentators expect the current right-leaning court to bend over backwards to make the cross constitutionally kosher, or as we say in Yiddish - to "kasher" the cross (yes, I realize the irony of this phrase!). One way for the conservative justices to reach this conclusion would be to rule that an individual does not have standing to bring such a lawsuit. Another possibility is to distinguish this case from a long set of precedents supporting the Ninth Circuit's ruling by deciding that the transfer of a tiny piece of property - in the middle of a vast, federally-owned National Preserve - is a permissible way to circumvent the constitutional prohibition on government endorsement of a particular religion.

The real mystery is how the newly-appointed Justice Sonia Sotomayor will vote in this case. There is very little in her record as an appellate judge to indicate her views on Church-State controversies. On one hand, she is a Catholic who does not hide her respect for religious rituals and symbols. On the other hand, she has repeatedly emphasized her committment to apply Supreme Court precedents, and the precedents on this issue are abundantly clear that the presence of an inherently religious, sectarian symbol on federally-owned land is a violation of the Establishment Clause. Certainly, her comments and questions during oral arguments will be revealing. She will probably be the most-watched and most-analyzed Justice during the upcoming hearings.

Addendum: For more analyses on the Supreme Court's new term and Justice Sotomayor's predicted influence, refer to the Washington Post's collection of short essays by law profs here.

Can Lawyers Use Gmail Despite the Content-Based Ads Suggesting A Breach of Confidentiality?

2009-09-30T01:19:00.011-04:00

If you use Gmail, you have surely noticed that Google makes its profit by displaying - on the sidebar - advertisements that are directly related to the content of your emails. This presents an ethical question for lawyers who use Gmail (or other such providers) to communicate with clients because of the apparent breach of confidentiality and the possibility that it constitutes a violation of the Rules of Professional Conduct.

Rule 1.6 of the new New York Rules of Professional Conduct - which went into effect April 1, 2009 - provides:

(a) A lawyer shall not knowingly reveal confidential information, as defined in this Rule, or use such information to the disadvantage of a client or for the advantage of the lawyer or a third person, unless:
(1) the client gives informed consent, as defined in Rule 1.0(j);
(2) the disclosure is impliedly authorized to advance the best interests of the client and is either reasonable under the circumstances or customary in the professional community; or
(3) the disclosure is permitted by paragraph (b).
[Paragraph (b) lists exceptions that are not relevant to our discussion - S.L.]

And Rule 1.6(c) states:

A lawyer shall exercise reasonable care to prevent the lawyer’s employees, associates, and others whose services are utilized by the lawyer from disclosing or using confidential information of a client.

Considering these Rules, the issue is may a lawyer use an email service provider that scans emails by computer for keywords and then sends or displays instantaneously computer-generated advertisements to users of the service based on the e-mail communications?

In 2008, the New York State Bar Association's Committee on Professional Ethics published an opinion addressing this question. The opinion notes that in recent years, email providers (such as Google) have offered free or low-cost e-mail services in which, in exchange for providing the user with email services, the provider’s computers scan emails and send or display targeted advertising to the user of the service. The Committee held that this process is not a breach of confidentiality because it is the provider's computers that identify the presumed interests of the user by scanning for keywords, and then sending advertising that reflects the keywords.

The NY State Bar Committee explained that if the particular email provider’s published privacy policies ensure that no individuals other than email senders and recipients read the email messages, the targeted advertising does not constitute a breach of confidentiality:

Consequently, when the e-mail service provider sends or generates instantaneous computer-generated advertising based on computer scans of the lawyer’s e-mails with clients, the risks posed to client confidentiality are not meaningfully different from the risks in using other e-mail service providers that do not employ this practice.

The Committee hypothesized, however, that they would reach the opposite conclusion if the emails were reviewed by human beings or if the service provider reserved the right to disclose the emails or the substance of the communications to third parties without the sender’s permission (or a lawful judicial order). It is the duty of the lawyer (and recommended practice for anyone dealing with confidential matters) to exercise due care in selecting an email service provider to ensure that its policies and stated practices protect client confidentiality.

Conclusion: A lawyer may use an email service provider that conducts computer scans of emails to generate computer advertising, provided the emails are not reviewed by or disclosed to other individuals. Although this opinion is formally a binding authority only with regards to New York-licensed lawyers, it would probably have persuasive authority in other jurisdictions as well.

What Can Adults Take Away from President Obama's Back-To-School Speech?

2009-09-08T12:32:00.010-04:00

President Obama is scheduled today to deliver his Back-To-School speech to America's schoolchildren. He will be speaking to high school students in Arlington, VA, and his speech will be broadcast live in thousands of schools across the nation. Perhaps my kids will be viewing the speech too.

Conservative organizations have reacted to this speech with the usual partisan obstructionism. Claiming that the President will "indoctrinate" our children with his "socialist agenda," they have encouraged parents to demand that their kids will not view the President's address to schoolchildren. According to news reports, many school districts in states including Texas, Illinois, Minnesota, Missouri, Virginia, and Wisconsin have decided not to show the speech to students.

Having carefully read the speech, which was released yesterday in advance, I have two observations: First, contrary to the Conservatives' claims, the President did not touch upon any controversial subject, and their hysteria concerning the possible "indoctrination" of American children is laughable. Second, the speech contains several inspiring messages with a strong appeal not only to schoolchildren but to adults as well. In fact, though he cloaked it as a "Back-to-School" speech, you can tell he is really speaking to Americans of all ages and from all walks of life. Here are some themes that are relevant to all of us:

1. Assuming personal responsibility (a.k.a "The Buck Stops Here" concept):

But at the end of the day, the circumstances of your life – what you look like, where you come from, how much money you have, what you’ve got going on at home – that’s no excuse for neglecting your homework or having a bad attitude. That’s no excuse for talking back to your teacher, or cutting class, or dropping out of school. That’s no excuse for not trying. Where you are right now doesn’t have to determine where you’ll end up. No one’s written your destiny for you. Here in America, you write your own destiny. You make your own future. That’s what young people like you are doing every day, all across America.

2. Achieving success through a laborious process and incremental steps:

Every single one of you has something you’re good at. Every single one of you has something to offer. And you have a responsibility to yourself to discover what that is. That’s the opportunity an education can provide. Maybe you could be a good writer – maybe even good enough to write a book or articles in a newspaper – but you might not know it until you write a paper for your English class. Maybe you could be an innovator or an inventor – maybe even good enough to come up with the next iPhone or a new medicine or vaccine – but you might not know it until you do a project for your science class. Maybe you could be a mayor or a Senator or a Supreme Court Justice, but you might not know that until you join student government or the debate team.

3. Earning, and investing in, a good education serves our country (a.k.a. patriotism):

And this isn’t just important for your own life and your own future. What you make of your education will decide nothing less than the future of this country. What you’re learning in school today will determine whether we as a nation can meet our greatest challenges in the future. You’ll need the knowledge and problem-solving skills you learn in science and math to cure diseases like cancer and AIDS, and to develop new energy technologies and protect our environment. You’ll need the insights and critical thinking skills you gain in history and social studies to fight poverty and homelessness, crime and discrimination, and make our nation more fair and more free. You’ll need the creativity and ingenuity you develop in all our classes to build new companies that will create new jobs and boost our economy.

4. Using failures and setbacks as teachable moments; inspiring us to overcome challenges and show perseverance and steadfastness:

But the truth is, being successful is hard. You won’t love every subject you study. You won’t click with every teacher. Not every homework assignment will seem completely relevant to your life right this minute. And you won’t necessarily succeed at everything the first time you try. That’s OK. Some of the most successful people in the world are the ones who’ve had the most failures. JK Rowling’s first Harry Potter book was rejected twelve times before it was finally published. Michael Jordan was cut from his high school basketball team, and he lost hundreds of games and missed thousands of shots during his career. But he once said, "I have failed over and over and over again in my life. And that is why I succeed." These people succeeded because they understand that you can’t let your failures define you – you have to let them teach you. You have to let them show you what to do differently next time. If you get in trouble, that doesn’t mean you’re a troublemaker, it means you need to try harder to behave. If you get a bad grade, that doesn’t mean you’re stupid, it just means you need to spend more time studying.

This is a timeless message that will resonate with people of all ages, from all segments of society, at every stage of life, particularly when faced with daunting challenges.

What does the phrase "Chosen People" mean?

2009-09-04T18:23:00.007-04:00

Jewish novelist Chaim Potok's most famoust book - one that has since become a classic in Jewish-American literature - is titled The Chosen. Through an array of colorful characters he explores the trials and tribulations of Jewish life in New York in the early 20th century, focusing on the generational divide and the tradition-vs.-modernity dilemma. One of the questions discussed and argued vociferously in his book is: What does the phrase "Chosen People" mean?

I have serious qualms about this phrase because it smacks of Jewish supremacy. It's a loaded and dangerous phrase that can be used to justify racial superiority. It has been used to excuse violent acts and unconscionable behavior. But the abuses of this concept are an excellent reason to try to find a different meaning, one that can be reconciled with the modern approach to human rights. And this week's parasha, Ki Tavo, prsents us with an opportunity to discuss this idea and find a new explanation.

This week's Torah portion contains two verses that can be used to illustrate one of the most basic principles in the world of Jewish faith regarding the relationship between the people of Israel and God. Here are the two verses:

You have affirmed this day that the Lord is your God, that you will walk in His ways, that you will observe His laws and commandments and rules, and that you will obey Him. And the Lord has affirmed this day that you are, as He promised you, His treasured people who shall observe all His commandments. Deut. 26: 17-18

The verb used in both verses - affirmed - gives us reason to pause. The original Hebrew word - he'emir - is a unique Hebrew verb which appears only one time in the entire Bible - in the above-mentioned verses (for the linguists: it's the hifil conjugation of the root AMR). There are many interpretations of this verb, and because every translation is by definition also an interpretation, it follows there are different ways to translate this verb into English. For example, I have seen this verb translated as follows: "You have recognized this day...". In any case, it is clear that this word says something about the ties between God and the Jewish people, and it seems to suggest that God has chosen or acquired the Jewish people in the sense that a person acquires something precious.

It is noteworthy that this verb appears in both verses, suggesting a reciprocal relationship: You affirmed God today to be your God, and God affirmed you to be His chosen people. Is there a causal tie between these two? Is it because the Israelites chose God to be their God that He chose them as His chosen nation? Or is it the opposite: Because God chose the people of Israel as His chosen people - they have chosen Him as their God? Or are they parallel to one another, without any causal link between the two?

A close examination of the two verses reveals that the connection between them is far more profound: "You have affirmed this day the Lord to be your God" - and how is this choice realized? It is through your obligations to keep His commandments. That is the way we relate to God.

What about the second verse? "The Lord has affirmed this day that . . . you are His treasured people." And how is that manifested? One might expect that just as Israel's choice is expressed in the observance of God's commandments, God's choice of Israel should be expressed in something that God will do for Israel. But that is not what the Scripture says. The Scripture ends this verse by stating: "[you are] His treasured people who shall observe all his commandments." The Torah's message here is that God's choice of Israel is expressed in the same terms as Israel's choice of God - in the fact that Israel observes His commandments.

In other words, there is no privilege or promise associated with God choosing Israel. These two verses are not two parallel matters, nor are they two items where one is the cause of the other. Both verses emphasize one idea: The relationship between God and his nation, and the relationship between the nation and its God, are not two things juxtaposed one against the other; rather, they are two iterations of the same thing. The fact that the people accept God as their God is the very fact that God chooses His people. The aspect of being God's chosen people carries with it no promise or guarantee. Being the "chosen people" gives no claim or right to anything; it merely obligates the people of Israel to follow God's commandments.

This, then, is the meaning of being different than other nations: it is not that the Jew lives longer, it is not that a Jew has title a certain land, it is not that a Jew has more rights than others, it is not that a Jew's fate is, objectively, superior to that of other people; rather, the "chosen people" concept is reflected solely in the requirement to follow God's commandments and abide by all the moral requirements contained in God's instructions to the Jewish people.

* * * * * * * * * * * * * * * * * * * * * * * * * * * *

Sources:

Yeshayahu Leibowitz, Accepting the Yoke of Heaven, Urim Publications, 2002

JPS translation of the Bible (a.k.a. Etz Hayim Torah and Commentary)

Religious Observance: For Reward or For Its Own Sake?

2009-08-07T19:42:00.026-04:00

In this week's weekly portion, Ekev (Deuteronomy 7:12 - 11:26) there is a famous passage that starts with the words "Vehaya im shamo'a" -- "If you will listen":

If you listen. . . I will give rain in the fields. . . take care, lest your heart be deceived. . . and God will become angry with you, and He will close the heavens and there will be no rain. . . and you will soon perish from the good land" (Deut. 11:13-17).

This paragraph is very familiar to observant Jews because it is the second part of the Keriat Shema - the principal prayer in the daily morning and evening prayers.

The first part of Shema

The first part of Kriat Shema, which was read in last week's weekly portion, is the paragraph that starts with the famous "Hear O Israel, the Lord is our God, the Lord is One" and continues with the verses known as "Ve'ahavta" -- "Love the Lord your God":

Hear, O Israel: The LORD our God, the LORD is one. 5 Love the LORD your God with all your heart and with all your soul and with all your strength. 6 These commandments that I give you today are to be upon your hearts. 7 Impress them on your children. Talk about them when you sit at home and when you walk along the road, when you lie down and when you get up. 8 Tie them as symbols on your hands, and bind them on your foreheads. 9 Write them on the doorframes of your houses and on your gates. (Deuteronomy 6:4-9)

These two parts of the Kriat Shema are juxtaposed against each other in the daily prayers. What is the meaning of this juxtaposition? Essentially, they are two different interpretations of religious observance. Not only is there a major difference between the two perspectives, but, moreover, they represent two contrary views of the meaning of religion. The first part, "Hear O Israel" followed by "Love the Lord your God," is an absolute demand upon man: "Love the Lord your God with all your heart, with all your soul and with all your strength."

Note that it is not presented as something which stems from certain facts or consequences, but is presented in terms of its inherent significance and importance. No reason is given for this commandment to love God, nor is it accompanied by sanctions. It does not say: "If you observe the following, it will be good for you, and if you do not observe it - you will be punished." This mitzva is valid in and of itself. In philosophical parlance, it is categorical.

The significance of this mitzva - which is not linked to any promise - is highlighted by the statement of one of the greatest figures in the world of the Oral Tradition, Rabbi Akiva, who offered the well-known commentary:

'With all your soul' - even if He takes away your soul (i.e. your life).

Contrast with Second Part of Shema

The second paragraph of Kriat Shema - the above-mentioned "If you will listen" part - is the exact opposite. In this passage, explanations and arguments are given for the mitzva to love God and to serve Him. This paragraph, too, mentions the love of God ("to love the Lord your God with all your hearts and with all your souls"), but here the Torah mentions a reason for this love, and the commandment to follow God's decrees is supported by the threat of sanctions. The very word "if" at the beginning of this section ("if you will listen"), and the word "lest" later on ("lest your heart be deceived") indicates that an alternative exists - violate this mitzva and certain things will result as a consequence. The acceptance of the Yoke of Heaven and the Yoke of Torah appears to be presented in a utilitarian manner: Follow God's laws - you will benefit from rain and an abundance of crops; violate God's laws - the heavens will dry up, and you will perish from the land.

Elisha Ben Avuya's Loss of Faith

If the first section of Kriat Shema presents the faith of Rabbi Akiva, who died sanctifying God's name, the second section would appear to present the view of a man who had once been Rabbi Akiva's colleague, Elisha Ben Avuya, but who had later become known as Aher, "the other." And a story, which is probably not historical but nevertheless has a deep meaning, explains how this Tanna, one who was a great Torah scholar, became Aher - "the other" - whose name is not mentioned anymore.

The Talumd recounts that once Elisha Ben Avuya was walking past an orchard, and saw the owner of the field tell his son to climb a tree to a certain bird's nest, where he was to send away the mother bird and take the eggs. The child did as commanded by his father. By doing so, he fulfilled two mitzvot: honoring one's father and sending away the mother bird - both of them mitzvot about which the Torah states that if you fulfill them "your days will be prolonged" (See Deuteronomy 5:16 and 22:6). Yet, the child fell from the tree and died.Elisha Ben Avuya then exclaimed: "Where is the long life of this child?"- and he lost his faith and became Aher, the other.

In contrast to Rabbi Akiva, Elisha Ben Avuya understood faith in terms of the way it seems to appear in the second section of Keriat Shema- the "If you will listen" passage. If you will listen to God's commandments - you will benefit, you will be rewarded. Yet the harsh reality contradicted this view: The child who had just fufilled the two commandments promising a long life - suddenly died.

Higher and Lower Level of Understanding of Mitzvot

The juxtaposition of the two passages and their inclusion in the mitzva of Kriat Shema relates to the two great concepts which exist in the Jewish faith, both of which are legitimate:

1. lishma - for its own sake

2. shelo lishma - not for its own sake, i.e. for reward or to avoid punishment

Both are ways to serve God, and the Torah recognizes both as legitimate forms of worship. In philosophical terms, we might say that lishma is a faith whose significance is deontological, and shelo lishma denotes faith that is based on consequentialism (the theory that human actions derive their moral worth solely from their outcomes or consequences).

The first section of the Shema is an expression of "Torah for its own sake" - love of God without instrumental significance. No reason is given, and no sanctions are mentioned. Had one been able to determine a benefit, a materialistic benefit derived from love of God, it would have lost its significance as a categorical command, as something a person accepts because he sees its value in itself.

But not every person is capable of that level of worship. Maimonides famously commented that the Torah permitted man to serve God and to observe the mitzvot with the hope of being rewarded, and to refrain from sin because of fear of punishment. Thus, the second passage of Shema is addressed to these people. Even a believing Jew, who observes Torah and mitzvot in the spirit of "If you will listen" of the second section of the Shema, is an upright Jew.

Many Rabbinic commentators throughout Jewish history attempted to explain the purpose of the mitzvot by providing various rationalizations, such as purifying the individual, or protecting the individual from harm (see, e.g. Nachmanides on Deuteronomy 22:6). But these explanations are based on the presumption that the performance of religious rituals will benefit people. As such, they are flawed because they address the populist level of understanding of the mitzvot. The much higher level of understanding is that the commandments are to be obeyed for their own sake. The purpose of faith is not to reward people with financial, medical or political benefits, but faith itself. That is what the first paragraph of the Shema expresses, and it is an idea that needs to be aggressively taught and repeated to today's religious Jews, particularly those who believe that Judaism grants them rights and privileges at the expense of others.

********************

Sources: Yeshayahu Leibowitz, Accepting the Yoke of Heaven, Urim Publications, 2002; Nachum Amsel, The Jewsih Encyclopedia of Moral and Ethical Issues, Jason Aronson Inc., 1994

US, under Obama, signs UN disability rights treaty

2009-08-03T00:23:00.006-04:00

US Ambassador to the UN Susan Rice last week signed [press release] the UN Convention on the Rights of Persons with Disabilities [official website]. President Obama's decision to sign the Convention highlights the Obama's administration's radically different approach to international law. The Bush administration had refused to sign the convention at the time it was adopted, claiming there were sufficient protective laws already in effect in the US. At the signing ceremony at UN headquarters, Rice said:

This Treaty, as you all know, is the first new human rights convention of the 21st century adopted by the United Nations and further advances the human rights of the 650 million people with disabilities worldwide. It urges equal protection and equal benefits under the law for all citizens, it rejects discrimination in all its forms, and calls for the full participation and inclusion in society of all persons with disabilities. The United States is very pleased to join the 141 other countries that have signed this Convention in pursuit of a more just world . . . . We all still have a great deal more to do at home and abroad. As President Obama has noted, people with disabilities far too often lack the choice to live in communities of their own choosing; their unemployment rate is much higher than those without disabilities; they are much more likely to live in poverty; health care is out of reach for far too many; and too many children with disabilities are denied a world-class education around the world. Discrimination against people with disabilities is not simply unjust; it hinders economic development, limits democracy, and erodes societies.

The convention must now be ratified by a two-thirds majority in the Senate.

Among the Convention's more important articles is Article 9:

Article 9 - Accessibility

1. To enable persons with disabilities to live independently and participate fully in all aspects of life, States Parties shall take appropriate measures to ensure to persons with disabilities access, on an equal basis with others, to the physical environment, to transportation, to information and communications, including information and communications technologies and systems, and to other facilities and services open or provided to the public, both in urban and in rural areas. These measures, which shall include the identification and elimination of obstacles and barriers to accessibility, shall apply to, inter alia:

a) Buildings, roads, transportation and other indoor and outdoor facilities, including schools, housing, medical facilities and workplaces;
b) Information, communications and other services, including electronic services and emergency services.

2. States Parties shall also take appropriate measures:

a) To develop, promulgate and monitor the implementation of minimum standards and guidelines for the accessibility of facilities and services open or provided to the public;
b) To ensure that private entities that offer facilities and services which are open or provided to the public take into account all aspects of accessibility for persons with disabilities;
c) To provide training for stakeholders on accessibility issues facing persons with
disabilities;
d) To provide in buildings and other facilities open to the public signage in Braille and in easy to read and understand forms;
e) To provide forms of live assistance and intermediaries, including guides, readers
and professional sign language interpreters, to facilitate accessibility to buildings and other facilities open to the public;
f) To promote other appropriate forms of assistance and support to persons with disabilities to ensure their access to information;
g) To promote access for persons with disabilities to new information and communications technologies and systems, including the Internet;
h) To promote the design, development, production and distribution of accessible information and communications technologies and systems at an early stage, so that these technologies and systems become accessible at minimum cost.

Cambridge Cop Accidentally Arrests Professor Gates Again During White House Meeting

2009-07-31T18:31:00.003-04:00

WASHINGTON—Upon arriving late to his meeting with President Barack Obama and famed African-American intellectual Henry Louis Gates, Cambridge police officer James Crowley once again detained the distinguished Harvard scholar after failing to recognize the man he had arrested just two weeks earlier, White House sources reported Thursday. "When I entered the Oval Office, I observed an unidentified black male sitting near Mr. Obama, and in the interest of the president's safety, I attempted to ascertain the individual's business at the White House," Crowley said in a sworn statement following the arrest. “The suspect then became uncooperative and verbally abusive. I had no choice but to apprehend him at the scene for disorderly conduct.” Witnesses said that Sgt. Crowley, failing to recognize Gates on their flight to Logan Airport, arrested the tenured professor in midair, once again at the baggage claim, and twice during their shared cab ride back to Cambridge.
(Source: This week's Onion Magazine)

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Just a bit of healthy humor for the weekend . . . I've written several serious posts about this subject, so it's time for some humor. It's what psychologists call "healing with humor". . .

The Dialogue on Race, Civil Rights and Criminal Justice Has Begun

2009-07-26T16:53:00.006-04:00

Kudos to President Obama for showing both leadership and humility by retracting his previous statement that one-sidedly condemned the actions of the Campbridge, Mass., policeman ("police acted stupidly") and issuing a more balanced statement aimed at healing the wounds and bridging the rift. On Friday, Obama admitted he had previously used a poor choice of words. He added that this incident could have been avoided by more responsible behavior on both sides. From his ad hoc press conference:

I want to make clear that in my choice of words I think I unfortunately gave an impression that I was maligning the Cambridge Police Department or Sergeant Crowley specifically -- and I could have calibrated those words differently. And I told this to Sergeant Crowley. I continue to believe, based on what I have heard, that there was an overreaction in pulling Professor Gates out of his home to the station. I also continue to believe, based on what I heard, that Professor Gates probably overreacted as well. My sense is you've got two good people in a circumstance in which neither of them were able to resolve the incident in the way that it should have been resolved and the way they would have liked it to be resolved.

Where in today's world do you have humble leaders who publicly admit their mistakes? We are blessed to have a President who values truth and honesty to the extent of doing the "unthinkable" and admitting they are sorry for making a past statement.

But the President did not stop there. This incident merely scratches the surface of an issue that goes to the heart of America's shameful past. Regardless of whose description of the events leading to the arrest is more accurate (and I submit to you that the truth is somewhere in the middle), this incident cannot be viewed without remembering that we are a society still recovering from the festering wounds of slavery, segregation and discrimination. The President, of course, realizes this, and he thus rightfully seized upon the opportunity to address the issue from an educational perpective, calling the incident a "teachable moment":

My hope is, is that as a consequence of this event this ends up being what's called a "teachable moment," where all of us instead of pumping up the volume spend a little more time listening to each other and try to focus on how we can generally improve relations between police officers and minority communities, and that instead of flinging accusations we can all be a little more reflective in terms of what we can do to contribute to more unity.

Some commentators, such as Jonathan Capehart in today's Washington Post, argue that the brutally-honest discussion we need to have about racism and discrimination will never happen. Capehart claims that Americans are not willing to talk frankly and openly about the fear and misunderstandings, the anger and the resentment, all those things that have combined to make racism a "corrosive cancer of the soul."

I beg to differ. The conversation has already begun. The huge amount of media attention and commentary this case has garnered indicates the conversation is in full swing. People across the nation (and all over the blogosphere) are making their opinions heard. Racism - especially America's shameful past - is openly discussed and criticized. The arrest is bound to shed light on discriminatory police practices (and I am not making a judgment call whether this actually happened here because I did not research all the facts) and make everyone more aware and better prepared to combat racism - whenever it rears its ugly head, whether in overt or covert manifestations.

There is a significant amount of research out there, particularly regarding disparity in arrests, bail decisions, convictions, and sentencing (See, e.g. Attorney Richard Dieter's article The Death Penalty in Black and White: Who Lives, Who Dies, Who Decides). But it has not drawn the attention it deserves because the public neither reads law review articles nor attends academic conferences. However, now that the issue is in the limelight it is inevitable that the general public will discuss and converse about these issues. The most recent statements by the President and Professor Gates clearly show they intend to encourage all segments of society to participate in this complicated and uncomfortable conversation openly and honestly.

Last but not least, stay tuned for the upcoming conversation in the White House over some beers between President Obama, Professor Gates and Sgt. Crowley. This is bound to be a watershed event, a "teachable moment." Gates said he is a fan of Red Strip and Beck's. We still don't know the preferred brews of Obama and Crowley.

Addendum: The planned White House sulha indicates Gates will not pursue a Section 1983 claim against the police. A Section 1983 claim refers to a claim under 42 U.S.C. §1983 which creates a private right of action against individuals who, acting under color of state law, violate federal constitutional rights or statutory rights. All the more power to Gates for wisely avoiding a confrontational lawsuit that would be counterproductive, and choosing to walk the wiser and more courageous path of a face-to-face meeting over beers to heal the wounds, mend the fences and educate the general public.

Don't Mess With Cops

2009-07-23T21:34:00.007-04:00

The unfortunate arrest of Harvard professor Henry Louis Gates Jr. in his own home has set off a a media brouhaha, triggering a storm of reactions. Even President Obama chimed in yesterday, and answered a reporter's question relating to this incident with the following observations:

But I think it's fair to say, No. 1, any of us would be pretty angry," Obama said. "No. 2, that the Cambridge police acted stupidly in arresting somebody when there was already proof that they were in their own home. And No. 3 — what I think we know separate and apart from this incident — is that there is a long history in this country of African-Americans and Latinos being stopped by law enforcement disproportionately, and that's just a fact."

The problem is that President Obama hastily rendered judgment ("police acted stupidly") before all the facts became known. It seems unfair - indeed a moral violation (not a legal one) of the concept of due process - to condemn the police before hearing and analyzing policemen's version of the sequence of the events. Now that the policeman's account of the incident is being published and given due attention, the whole incident looks completely different:

But Sergeant Crowley said Thursday that he was only protecting himself when he asked Professor Gates, whom he did not recognize, to come out and identify himself. Daytime break-ins are not unheard of in the neighborhood, he said.Sergeant Crowley described the woman who reported the possible break-in — who works at Harvard Magazine, on Professor Gates’s street — as “reliable,” and said that while the professor did not “look like somebody who would break into a house,” his tone was troubling. In the police report he filed, Sergeant Crowley said Professor Gates had refused to step outside and, when told the sergeant was investigating a possible break-in, said, “Why, because I’m a black man in America?” According to the report, Professor Gates also accused the sergeant of being racist and yelled that he “wasn’t someone to mess with.” Sergeant Crowley said he tried to identify himself several times but the professor was shouting too loudly to hear.

President Obama was right only in his Point No. 3, namely that there is much to be improved on the serious problems of race and the criminal justice system. But with all due respect to the President, the whole incident may very well have been avoided had the professor heeded the advice given by Neely Tucker in today's Washington Post.

I have read many commentaries on the Skip Gates story, but Tucker's is the wisest of them all. The following words of wisdom speak for themselves:

When the Cops Are Called In, Anger Is a Dangerous Weapon to Brandish

By Neely Tucker, July 22, 2009

One of the common-sense rules of life can be summed up this way: Don't Mess With Cops.
It doesn't matter if you are right, wrong, at home or on the street, or if you are white, black, Hispanic, Jewish, Muslim or whatever. When an armed law enforcement officer tells you to cease and desist, the wise person (a) ceases and (b) desists.

The End.

Like Harvard professor Henry Louis Gates Jr., I am interracially married, currently live in a predominantly white neighborhood, have a healthy respect for armed men wearing uniforms, and have had the police come to my house in a confrontational manner, doing the job they're paid to do.

It happened when our house alarm went off at 2 a.m. a few months ago, on a night the electricity was off and the neighborhood was dark as pitch. WANH!! WANH!! WANH!! It sent my wife and me leaping out of bed. I sprinted downstairs with a baseball bat, our Rottweiler and a flashlight to confront any possible intruder. I checked all the windows and doors, the dog yawned, and it quickly became apparent that there was a short circuit from a rear door.
My wife called the alarm company and gave them the code for a false alert.

Then two cops showed up.

The first thing they did was ask me to step outside. The second thing they did was to ask me for my identification, to prove that I lived there. They were demanding and they were not friendly. They kept their flashlights in my face. They did not take my word for it that it was my house, though I was as white as they were.
Once I showed them my driver's license with the address, they asked if anyone else was inside, and then they asked if they could look around the place.
I was irritable in that middle-of-the-night kind of way, but it did not occur to me that they might be picking on us, the salt-and-pepper couple on the block. What occurred to me was that they got a call about a home alarm going off and they had to secure the premises before they could leave. And I was thrilled to have them search the entire house, because my wife's 9-year-old daughter was murdered in a home invasion in Silver Spring six years ago. The police came running then, too, but it was too late.

So I told them about that, and they then politely told my wife what they were doing, and they swept the house, room-to-room and closet-to-closet, and then walked the back yard as well. They came back to the front door, these young white cops, and assured my African American wife that there were no bad men in the house or on the property, and that we were safe.
And then they left.

I tell that story to tell this one: The guy who owns the house across the street, another white guy, rents out the place. One time when it was empty, he went over there late one night to do some work on the interior, turned on all the lights. A neighbor noticed the lights on in the empty house and called the police, who pulled up a few minutes later.
He got angry at them for asking them to prove he owned the place. Yelled. They yelled back. Threatened to arrest him. Only the intervention of our next-door neighbor, vouching for the guy, ended the situation.

America can be a funny place, and it can be mean and hard. Bad things happen to good people who are white, black, Hispanic, Jewish, Muslim or whatever, and some of those things are caused by people breaking into houses. The police, when they show up at a residence or a liquor store, don't know what's what or who's who. The good cops are there to have people (a) cease and (b) desist. The bad cops still have a badge, a gun and the legal authority to haul your butt downtown.
So you want to make friends, join the glee club. You want to yell at people who are lousy at their jobs, go to a Redskins game. But, all things considered, Don't Mess With Cops. It usually works out better that way.

The Weekly Portion: What Makes A Land Holy?

2009-07-18T19:58:00.009-04:00

The weekly portion read on the Sabbath this week contains two parashot (portions): Matot and Masei. (They are read together this year, while in most years they are read on separate Sabbaths.) This Sabbath falls in a special period in the Jewish calendar called The Three Weeks - a time of remembrance of the destruction of Jerusalem that begins with the fast of the 17th of Tammuz (this year July 9) and ends with the fast of Tisha Be'Av (this year July 30).

The content of these two parashot has no connection to the destruction and the exile, but the haftarah (the practice of the supplemental reading from the Prophets following the reading of the weekly portion) of today contains powerful admonitions to the Jewish people and prophecies of the destruction. The haftarah is taken from Jeremiah Chapter 2. The Haftarah selection is always one that is related to the subject of the weekly Torah reading or the festival or event being celebrated. If we look at the topics covered in Chapter 2 of Jeremiah, it appears that there is no connection between the content of the parasha and that of the prophecy by Jeremiah.

There is, however, a remarkable verbal association between one of the verses in the parasha of Masei and a central verse in Jeremiah's rebuke. Among the many ideas mentioned in this week's portion is a stringent warning against shedding blood. And in the warning against shedding blood, which comes after the verse that states that blood spilled defiles the land, it states:

Do not, therefore, defile the land which you will inhabit, wherein I dwell: for I God dwell among the Israelites.
(Numbers 35:34).

Note that God does not dwell in the land, but among the Israelites. It is that fact which makes the land significant: God dwells among the people of Israel only if they make Him dwell among them. God does not dwell in the land automatically. This explains the warning: "Do not, therefore, defile the land which you will inhabit."

Had God dwelled in the land because of the sanctity of the land, how could the land have been defiled by anyone? But here we are told unequivocally that it is possible that the Israelites will defile the land.

Fast forward 800 years after Moses. The prophet Jeremiah prophesied not about what should be done and what should not be done; rather, he described what the conditions were like and what was being done. Jeremiah said:

You entered and defiled My land, and made My heritage an abomination.
(Jeremiah 2:7).

The same land which is known as God's land and inheritance has no immanent uniqueness, and man's action can defile God's land and make His inheritance an abomination.

Jeremiah spoke to later generations as as well, as his teachings contain eternal messages. And that verse in Jeremiah is directed at us as well. On the one hand, we are aware that the people in Israel in the last 100 years have returned and are rebuilding a national home in this land, which they consider God's land and inheritance, while on the other hand, this does not prevent them from endorsing and declaring holy that which both the Torah in our parasha and the prophet Jeremiah regard as acts of defilement and abomination.

There is nothing more dangerous than cloaking acts of violence, discrimination and dispossession in the garb of holiness. The land itself does not have any inherent quality which sanctifies everything done in it, but only that which is done in it in accordance with the principles of justice and fairness can impart holiness to the land. Just as our actions can make the land holy, they can also defile God's inheritance. These words apply to us. We should always be mindful that our actions in the land are making the land holy and not defiling it. If there is any meaning to religious rituals associated with the period of the Three Weeks, it is this theme - do our actions in the Land of Israel sanctify the land or defile it?

(Based on the book by Yeshayahu Leibowitz: Accepting the Yoke of Heaven - Commentary on the Weekly Portion)

The Weekly Portion: Lessons in Religious Fanaticism

2009-07-10T06:08:00.011-04:00

The weekly Torah portion of this week, Pinchas, provides an opportunity to discuss a concept of significant importance to societies with strong religious convictions- in general, and to the Israeli society - in particular.

The beginning of this week's Torah portion Pinchas is a direct continuation of the end of the previous portion, Balak, which featured the affair of the daughters of Moab, with whom the Israelites whored, and which involved the worship of the idol Pe'or. That affair climaxed in the act of Zimri, who blasphemed the God of Israel and scorned His prophet, Moses, by having sexual relations in public with a Midyanite woman. In response to this act, Pinchas, the grandson of Aaron the Cohen, brandished his sword and stabbed Zimri and the Midyanite woman, brutally severing their bodies and killing them in front of all the Israelites.

Pinchas's act is described in terms of religious zealotry. Pinchas committed this act in the name of God, for God's honor which had been desecrated. In other words, he wanted to carry out God's judgment by himself and bring about the blasphemer's punishment. At the beginning of this week's portion, the Torah states that because of this Pinchas and his descendants have been granted a covenant of peace with God. The radical zealot, who in his zealotry for God sheds human blood, is the very same person who is granted God's covenant of peace!

What is the meaning of this covenant? Doesn't it seem strange and ironic that a man who killed two human beings without the authority of the law receives a covenant of peace? One way to interpret it - the religious fanatical way - is to claim that this covenant is a retrospective blessing by God. Another way, however, is to say that God's covenant was given to him to prevent this from ever happening again: Pinchas (and his descendants) are now sworn peaceniks who - by virtue of this covenant - cannot possibly engage in this kind of violence. From this we can deduce that a person is not permitted to be zealous for God and carry out extreme measures such as these unless he is someone who is wholeheartedly a man of peace - shalom - and who is faithful to God and man.

Now this parasha of Pinchas has a very close parallel, one which is well-known and part of the consciousness of all generations, in the figure of the zealous prophet who arose about 500 or 600 years after Pinchas--the prophet Elijah. He too is zealous for God, and it is because of this that he kills the false prophets of the Ba'al and the Ashera. The parallel between these two events and these two figures is so strong, that not only was the story of Elijah adopted as the haftara for the parasha of Pinchas, but in the aggadic tradition, the two characters are fused into one, and Elijah is none other than Pinchas, who miraculously remained alive for 500 or 600 years.

We have a long tradition that the prophet Elijah is the harbinger of peace, and the concluding verse of all the books of the Prophets in the Bible is a verse about the prophet Elijah, who will come back and reconcile fathers with sons and sons with fathers - and will bring peace between the generations. Again, we have the same contradiction: the zealot, who out of his zeal for God even sheds blood, is none other than the harbinger of peace.

This is a problematic topic both ethically and religiously. Who is permitted to be a zealot for God? Who is permitted to take upon himself the right to act in accordance with this zeal? An aggada (Midrashic story) presents this question very forcefully in the context of the deeds of Elijah.

Elijah kills the prophets of Ba'al and must flee the wrath of Isabel. He flees to the desert and is privileged to have God appear to him. God does not appear in fire or thunder, but in a still, barely-audible voice, and asks him:

Elijah what are you doing here?

Elijah answers:

I have fled from Israel, for "I have been very zealous for the Lord God of Hosts: for the children of Israel have forsaken Your covenant, thrown down Your altars, and slain Your prophets with the sword and I had to flee for my life." (Kings I, 19:10)

Notice the justification: "I have been very zealous for the Lord." Elijah is given an answer by God who responds to each one of Elijah's arguments. On his comment that, "the children of Israel have forsaken Your covenant," God says to him:

"Whose covenant did they forsake? Was it your covenant or Mine? After all, it was not your covenant, and who gave you the right to be zealous against those who have forsaken My covenant?

As to "they have torn down Your altars," God says to him: Did they tear down your altars or Mine? In other words: Let Me take care of My honor which is desecrated, and don't assume for yourself the authority to be zealous on My behalf. Elijah is then disqualified from being a prophet to Israel. God tells him:

Israel cannot withstand your zealotry. You were zealous at Shittim (this is a clear reference to Pinchas, who, according to the Aggada, is Elijah), and now you were zealous at Mount Carmel. You spilled blood there and you spilled blood here, in your zeal for God. That is a noble deed, but Israel cannot survive such zeal. Therefore, Elijah must find another person to be a prophet over Israel, and that is Elisha.

This has significance for all times. In every generation, but especially in our time, there are people who purport to speak in the name of faith in God, and assume for themselves the authority to be zealous on God's behalf. And the question is asked: Is their personality such, and are their qualities and their human and ethical level such, that they are worthy of being men of the covenant of peace-except that their zeal for God has forced them to carry out these severe actions?

Is there anyone who has these qualities etched so firmly in his soul to the extent that by his nature and essence he a "man of peace" devoid of any aggressive tendencies whatsoever? On the theoretical level, that man would be permitted, in extreme cases, to be zealous on behalf of God. But in the real world, we know that no such human being exists. Modern psychology teaches us that we all have in us some form of aggressiveness and violent leanings. Accordingly, the real meaning of this story is that no human has a right to carry out zealous acts of punishment in God's name. In other words, Pinchas was granted the covenant of peace to warn all others that they should never attempt to carry out zealous acts of violence in the name of God.

In summary, no person has a right to commit violent acts on the pretext of being zealous for God. If he is zealous on behalf of God, he is nothing but a murderer.

(Based on on my grandfather Yeshayahu Leibowitz's book Accepting the Yoke of Heaven - Commentary on the Weekly Portion)

In Memoriam: Stephen T. Johns

2009-06-14T00:58:00.007-04:00

In our synagogue this Shabbat, we remembered Stephen T. Johns, the security officer in the Holocaust Museum in Washington DC who died in the line of duty after being shot and killed in the June 10 shootout with an avowed white supremacist who opened fire at the museum entrance.

One of our congregants, Nessie, works as a volunteer at the Holocaust Museum. She was working at her desk when the attack occurred. Today she came up to the bimah and said Birkat Hagomel - the traditional Thanksgiving Blessing recited by one who has survived a dangerous situation[1]. Nessie, a Holocaust survivor, then spoke about the traumatic experience and said a few words in memory of Officer Johns.

Nessie recounted Officer Johns' warm greeting at the museum entrance that morning. Never could she have imagined that would be the last time she spoke with the tall, friendly security guard. (According to a Washington Post report, he was nicknamed "Big John," for he was well over 6-feet tall.) Nessie recalled his constant courtesy and friendliness. Nessie then went to the department where she does volunteer work and immersed herself in her duties.

Suddenly, while working at her desk, Nessie heard shots. They were so loud and close that some employees thought a bomb had exploded. It was confusion and mayhem. People scrambled under their desks. Nessie hid under her desk with a co-worker. In a voice laden with emotion, Nessie described how the co-worker pushed Leslie deep under the table and laid down in front of her, saying "You lay down behind me. If he comes into this room, I should go, not you. You survived the Holocaust I won't let you go like this."

But thanks to 39-year-old Stephen Johns and his fellow security officers, the supremacist-terrorist was not able to hurt Nessie or any other visitor or employee in the museum. The officers returned fire, hitting the home-grown terrorist James von Brunn and stopping the rampage before it could develop into a full-blown massacre.

Officer Johns died saving the lives of hundreds of innocent people. May his memory be a source of blessing for his family and friends. Let this be a reminder to all that the fight against racism, bigotry and supremacy (of any kind - white, Jewish, etc.) must continue at full throttle.

The Washington Post reports that three funds have been created for the family of Johns, who had a 6-year-old son:

Checks payable to USHMM Officer Johns Family Fund may be mailed to USHMM, 100 Raoul Wallenberg Pl. SW, Washington D.C. 20024. Contributions can also be made by calling 877-91USHMM (877-918-7466) from 8 a.m. to 8 p.m. or going to the museum's Web site.

Wackenhut, Johns's employer, asks that contributions be made by check or money order payable to Zakia Christina Johns in care of WSI Wachovia, 4440 PGA Blvd., Palm Beach Gardens, Fla. 33410.

Checks payable to the American Jewish Committee, with "Holocaust Museum Memorial Fund" on the memo line, should be mailed to: American Jewish Committee Washington Chapter in care of Melanie Maron Pell, 1156 15th St. NW, Suite 1201, Washington D.C. 20005.

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1. Blessed are you, God, King of the Universe, who bestows good things upon the guilty, who has bestowed every goodness upon me.

According to the Artscroll Commentary, the term "guilty" is used not in the sense of wickedness but in recognition of the fact that the grateful person may not have been worthy of Divine protection.

A Plea to Obama Speechwriters: Moratorium on 'Muslim World'

2009-06-04T00:35:00.009-04:00

Today President Obama is due to fly to Cairo from Saudi Arabia and deliver his much-hyped "speech to the Muslim world." You cannot escape this speech; there has been a well-coordinated media frenzy leading up to this speech, and it has generated enormous expectations. The frenzy has reached such a crescendo to the extent the speech is being advertised as "the most important since his inauguration."

But amid the PR blitz to which we are being subjected, a critical issue of substance has been overlooked: Is there really one homogeneous entity called "Muslim world"? And does it make any sense at all to address the myriad struggles, hopes, dilemmas, and dreams of 1.5 billion people spread out all over the world in a multitude of nations by simply lumping them together and referring to them as the "Muslim world"?

The media's constant use of the term "Muslim world" has reminded me of an excellent argument, which I read several weeks ago, against the meaningless phrase "Muslim world." Parag Khanna, a senior research fellow at the New America Foundation, published the following gem in the Washington Post:

Obama, like Bush before him, thinks that he can speak to some mythical community known as the "Muslim world." Like many other Western politicians and intellectuals, the president vests the term with too much meaning, and by using it incessantly, he misses the chance to truly win hearts and minds.

Just as there has not been any meaningful "Christian world" since the Holy Roman Empire, there has been no unified "Islamic world" since the Middle Ages. For centuries thereafter, Turks, Persians and Arabs squabbled over ideological hegemony. Sunni versus Shiite is just one of Islam's divides today, reminding the world that the faith has no supreme authority to which all believers adhere. By using the term "Muslim world," we only elevate the likes of Mullah Omar or Osama bin Laden, whose rhetoric turns archaic Islamist fantasies into self-fulfilling prophecies. Speaking to all Muslims is speaking to none of them.

The United States will never pursue consistent policy across the Muslim world's petro-states, monarchies and failed states, nor do we need to do so. In Turkey, we should speak of how to help the country join the European Union. In Pakistan, focus on integrating tribal areas into the constitutional structure. In Egypt, speak of job creation and a legitimate transfer of power from Hosni Mubarak. Such efforts are taken through traditional foreign policy -- between nations, not cultures.

Eight years of talking of the "Muslim world" have only heightened mutual suspicions. After shelving the "war on terror," Obama should dump its alleged target audience from his lexicon as well.

Will Obama's speechwriters heed this great piece of advice? I doubt it. But all of us - journalists, bloggers, commentators, and all who take pen to paper (or keyboard to screen) - can contribute to this important discussion by pledging to refrain from stereotypical and damaging generalizations. Let's begin the path to being specific, definite and concrete - which is a prerequisite for any meaningful change - with a moratorium on "Muslim world."

Post-speech Update: President Obama must be reading this blog! How else to explain his decision to heed the above-mentioned suggestion, and, contrary to his previous speeches, completely omit from his Cairo speech the phrase "Muslim world"!
As I suggested, the President used more precise and concrete terms, and refrained from the meaningless generalization "Muslim world." Instead, he used the following phrases:
Muslim communities in my country
Muslim-majority countries
partnership between America and Islam
Muslims do not fit a crude stereotype
Islam is a part of America
the Palestinian people - Muslims and Christians
American Muslims
Muslim citizens
Organization of the Islamic Conference
The Holy Koran...the Talmud...the Holy Bible

Kudos to our President for using language wisely and articulating his ideas and thoughts in a precise manner that teaches us all to be aware of subtleties and cherish our differences.

Vive la différence!

Happy 89th Birthday, John Paul Stevens- Champion of Civil Rights!

2009-04-21T01:48:00.014-04:00

Today Supreme Court Justice John Paul Stevens celebrates his 89th birthday. This is a great opportunity to congratulate him for being a champion of civil rights and wish him many more years on the Court.

With many opinions upholding constitutional freedoms and protecting civil rights, Justice Stevens has earned a reputation as a brilliant jurist and a defender of democratic values. In the current right-leaning Court, he has been a beacon of light - protecting our civil rights, fighting for participatory democracy, and pursuing justice.

In honor of his 89th birthday, I will feature his opinion from a famous immigration case, Fedorenko v. United States, 449 U.S. 490 (1981) that interestingly ties in with the Israeli Holocaust Remembrance Day (Yom Hazikaron la-Shoah) that was observed today.

Facts of the case:

The Displaced Persons Act of 1948 (DPA) enabled European refugees driven from their homelands by World War II to emigrate to the United States without regard to traditional immigration quotas. It provided that any person "who shall willfully make a misrepresentation for the purpose of gaining admission into the United States as an eligible displaced person shall thereafter not be admissible into the United States," and the applicable definition of "displaced persons" specifically excluded individuals who had "assisted the enemy in persecuting [civilians]" or had "voluntarily assisted the enemy forces" in their operations.

The petitioner, Mr. Feodor Fedorenko, was born in 1907 in Sivasch, Ukraine, subject of the USSR, and received a third grade education. In 1941 he was mobilized into the Russian army along with his truck and while serving in the Russian army, his group was overrun by the German forces, and taken prisoner by the Germans.

Subsequently he was transported to five different camps, and in those camps he was starved, he was beaten, and he was forced to work or die. He was then trained at Travnicki to serve as a guard and was given a uniform, boots, and trained to operate and handle a weapon.

He was then sent to the Treblinka Camp, where he served involuntarily as a guard for 10 months. After the uprising in Treblinka in August, 1943, he was assigned back to Travnicki, then to Poelitz, and then to Hamburg, all while under the control of the German army.

When the war ended the petitioner worked for the British forces until 1949 and thereafter applied for immigration into the United States through the vice consular office in Germany, was accepted, and came to the United States in 1949.

From that point on he resided in Waterbury, Connecticut, up until the time of his retirement from his place of employment, and in 1970 he became an American citizen.

In 1977 the Government commenced denaturalization proceedings against Mr. Fedorenko, seeking to strip him of his naturalization, claiming that he had made a material misrepresentation in procuring his visa to the United States, that he had committed atrocities at the Treblinka death camp, and that he had been in service in the German army.

District Court decision:

After a trial, the District Court in a 54-page decision rendered judgment in favor of Fedorenko.
The District Court rejected the testimony of Treblinka survivors, who testified at that trial regarding Mr. Fedorenko and his activities at the Treblinka death camp. Mr. Fedorenko denied all of the allegations and denied all of the testimony against him with the exception of the fact that he was indeed a guard in Death Camp No. 1, but only a perimeter guard and had nothing to do with the actual operation of the gas chambers.
The District Court also found that the petitioner served involuntarily as a guard under a threat of death, and his coerced performance as a guard under these circumstances cannot serve as a basis for stripping him of his citizenship.

The District Court found that although petitioner had lied about his wartime activities when he applied for a visa in 1949, he had been forced to serve as a guard and the Government had not met its burden of proving that he had committed war crimes or atrocities at Treblinka. The court held that because disclosure of petitioner's involuntary service as a concentration camp guard would not have been grounds for denial of citizenship, his false statements about his wartime activities were not misrepresentations of "material facts" within the meaning of the denaturalization statute under the materiality standard announced in Chaunt v. United States, 364 U.S. 350.

Court of Appeals reverses

The Court of Appeals reversed, holding that the District Court had misinterpreted the Chaunt test and that it had no discretion to enter judgment for Fedorenko in the face of a finding that he had procured his naturalization by willfully concealing material facts.

Supreme Court: 9-2 decision

When the case reached the Supreme Court, the majority of justices affirmed the decision of the Court of Appeals, agreeing that Fedorenko should be stripped of his citizenship. But Justice Stevens and Justice White dissented, holding in favor of Fedorenko.

Justice Stevens' opinion

Stevens wrote a fascinating opinion that addressed the agonizingly difficult dilemmas that Jewish kapos faced during the Holocaust, and analyzed the legal and immigration ramifications of such conduct.

First, Justice Stevens sets the record straight as to what exactly Fedorenko did in the camps. Justice Stevens is known for his attention to factual details, which is a prerequisite for ensuring that judicial decisions are just:

The trial judge was apparently convinced that the suggestive identification procedures endorsed by the prosecution had resulted in a misidentification of petitioner; that petitioner had not performed the atrocious acts witnessed by the survivors of Treblinka who testified; that Vice Consul Jenkins' testimony was not entirely reliable; and that for the most part petitioner was a truthful witness.

Justice Stevens then explains Fedorenko's ommission was not material, and cannot justify applying that provision of the DPA:

The District Court concluded that because petitioner regarded himself as a prisoner of war, and because he had listed his Russian military service, this omission could not be considered willful. See id., at 917. That conclusion was certainly permissible; indeed it is arguable that the Treblinka guard service was neither the sort of "membership" in a club or organization nor the sort of "military service" that the question contemplated.

Then, Justice Stevens analyzes the historical background, and correctly makes the distinction between those who voluntarily assisted the Nazis and those who were forced to do so:

The District Court recognized that the section dealing with assisting enemy forces contained the word "voluntarily," while the section dealing with persecuting enemy populations did not. The District Court refused to construe the statute to bar relief to any person who assisted the enemy, whether voluntarily or not, however, because such a construction would have excluded the Jewish prisoners who assisted the SS in the operation of the concentration camp. These prisoners performed such tasks as cutting the hair of female prisoners prior to their execution and performing in a camp orchestra as a ruse to conceal the true nature of the camp. I agree without hesitation with the District Court's conclusion that such prisoners did not perform their duties voluntarily and that such prisoners should not be considered excludable under the DPA.

Stevens criticizes the majority's opinion because if applied to Jewish kapos, it would mean they would be ineligible for American citizenship, or worse yet, stripped of citizenship already acquired. Stevens is troubled by the possibility that the majority's opinion may cause many Holocaust survivors who found refuge in America to face deportation:

The Court's resolution of this issue is particularly unpersuasive when applied to the "kapos," the Jewish prisoners who supervised the Jewish workers at the camp. According to witnesses who survived Treblinka, the kapos were commanded by the SS to administer beatings to the prisoners, and they did so with just enough force to make the beating appear realistic yet avoid injury to the prisoner. Record 293-295, 300-302 (Kohn), 237 (Turowski).[72] Even if we assume that the kapos were completely successful in deceiving the SS guards and that the beatings caused no injury to other inmates, I believe their conduct would have to be characterized as assisting in the persecution of other prisoners.[73] In my view, the reason that such conduct should not make the kapos ineligible for citizenship is that it surely was not voluntary. The fact that the Court's interpretation of the DPA would exclude a group whose actions were uniformly defended by survivors of Treblinka, id., at 236-239 (Turowski), 300 (Kohn), 1157-1159 (Epstein), merely underscores the strained reading the Court has given the statute.

Justice Stevens concludes his opinion by giving us a glimpse of his overall judicial philosophy in interpreting law - avoiding suffering and pursuing justice:

The gruesome facts recited in this record create what Justice Holmes described as a sort of "hydraulic pressure" that tends to distort our judgment. Perhaps my refusal to acquiesce in the conclusion reached by highly respected colleagues is attributable in part to an overreaction to that pressure. Even after recognizing and discounting that factor, however, I remain firmly convinced that the Court has committed the profoundest sort of error by venturing into the unknown to find a basis for affirming the judgment of the Court of Appeals. That human suffering will be a consequence of today's venture is certainly predictable; that any suffering will be allayed or avoided is, at best, doubtful.

"myFaves" from Obama's speech in Turkey

2009-04-07T04:52:00.005-04:00

T-Mobile has a promotion called "myFaves" in which you can select five favorite people, and talk to them as much as you want, whenever you want. Unlimited nationwide calling, even to landlines or other carriers. It's a great deal but you need to carefully select the five people you would most enjoy their company on the phone.

Today, Obama gave an amazing speech in Ankara, Turkey. It would be an enjoyable exercise to apply the "myFaves" concept to his speech, and select the five most compelling and inspiring quotes. Here are "myFaves" from this watershed event:

1. On Turkey's unique path to democracy and the dangers of trying to force democracy down a country's throat:

This future was not easily assured, it was not guaranteed. At the end of World War I, Turkey could have succumbed to the foreign powers that were trying to claim its territory, or sought to restore an ancient empire. But Turkey chose a different future. You freed yourself from foreign control, and you founded a republic that commands the respect of the United States and the wider world. And there is a simple truth to this story: Turkey's democracy is your own achievement. It was not forced upon you by any outside power, nor did it come without struggle and sacrifice. Turkey draws strength from both the successes of the past, and from the efforts of each generation of Turks that makes new progress for your people.

2. Celebrating Turkey's diversity and mutli-culturalism and sending an in-between-the-lines warning message to European racists:

So let me be clear: The United States strongly supports Turkey's bid to become a member of the European Union. (Applause.) We speak not as members of the EU, but as close friends of both Turkey and Europe. Turkey has been a resolute ally and a responsible partner in transatlantic and European institutions. Turkey is bound to Europe by more than the bridges over the Bosphorous. Centuries of shared history, culture, and commerce bring you together. Europe gains by the diversity of ethnicity, tradition and faith -- it is not diminished by it. And Turkish membership would broaden and strengthen Europe's foundation once more.

3. Admitting our own sins while explaining beautifully why freedom or religion and expression and justice for all are the foundations of democracy:

Freedom of religion and expression lead to a strong and vibrant civil society that only strengthens the state, which is why steps like reopening Halki Seminary will send such an important signal inside Turkey and beyond. An enduring commitment to the rule of law is the only way to achieve the security that comes from justice for all people. Robust minority rights let societies benefit from the full measure of contributions from all citizens. I say this as the President of a country that not very long ago made it hard for somebody who looks like me to vote, much less be President of the United States. But it is precisely that capacity to change that enriches our countries. Every challenge that we face is more easily met if we tend to our own democratic foundation. This work is never over. That's why, in the United States, we recently ordered the prison at Guantanamo Bay closed. That's why we prohibited-- without exception or equivocation -- the use of torture. All of us have to
change. And sometimes change is hard.

4. There was the obligatory two-state-solution paragraph, though the President somewhat disappointed by not straightforwardly denouncing the occupation. It's high time the President stopped beating about the bush and mentioned the brutal occupation of Palestinian land and people by name, without this type of evasiveness:

In the Middle East, we share the goal of a lasting peace between Israel and its neighbors. Let me be clear: The United States strongly supports the goal of two states, Israel and Palestine, living side by side in peace and security. That is a goal shared by Palestinians, Israelis, and people of goodwill around the world. That is a goal that the parties agreed to in the road map and at Annapolis. That is a goal that I will actively pursue as President of the United States. We know the road ahead will be difficult. Both Israelis and Palestinians must take steps that are necessary to build confidence and trust. Both Israelis and Palestinians, both must live up to the commitments they have made. Both must overcome longstanding passions and the politics of the moment to make progress towards a secure and lasting peace.

5. The most inspiring part of the speech was his articulation of the nature and extent of U.S. engagement with the Muslim world:

I know that the trust that binds the United States and Turkey has been strained, and I know that strain is shared in many places where the Muslim faith is practiced. So let me say this as clearly as I can: The United States is not, and will never be, at war with Islam. (Applause.)

In fact, our partnership with the Muslim world is critical not just in rolling back the violent ideologies that people of all faiths reject, but also to strengthen opportunity for all its people. I also want to be clear that America's relationship with the Muslim community, the Muslim world, cannot, and will not, just be based upon opposition to terrorism. We seek broader engagement based on mutual interest and mutual respect. We will listen carefully, we will bridge misunderstandings, and we will seek common ground. We will be respectful, even when we do not agree. We will convey our deep appreciation for the Islamic faith, which has done so much over the centuries to shape the world -- including in my own country. The United States has been enriched by Muslim Americans. Many other Americans have Muslims in their families or have lived in a Muslim-majority country -- I know, because I am one of them. (Applause.)

Condemn the Jewish Jihadists

2009-03-25T02:06:00.021-04:00

In his most recent article An Army of Extremists, author Christopher Hitchens takes up the issue of the Israeli rabbis who incited Israeli soldiers into believing that the Gaza onslaught is a holy war for the extermination of the evil Muslims and the expulsion of non-Jews from the Jewish land. Hitchens recounts a familiar episode in the past:

I remember being in Israel in 1986 when the chief army "chaplain" in the occupied territories, Rabbi Shmuel Derlich, issued his troops a 1,000-word pastoral letter enjoining them to apply the biblical commandment to exterminate the Amalekites as "the enemies of Israel." Nobody has recently encountered any Amalekites, so the chief educational officer of the Israeli Defense Forces asked Rabbi Derlich whether he would care to define his terms and say whom he meant. Rather evasively—if rather alarmingly—the man of God replied, "Germans." There are no Germans in Judaea and Samaria or, indeed, in the Old Testament, so the rabbi's exhortation to slay all Germans as well as quite probably all Palestinians was referred to the Judge Advocate General's Office. Forty military rabbis publicly came to Derlich's support, and the rather spineless conclusion of the JAG was that he had committed no legal offense but should perhaps refrain in the future from making political statements on the army's behalf.

Hitchens then argues that this phenomenon is a predictable product of a worldview which allows for religion to govern political and military affairs:

The problem here is precisely that the rabbi was not making a "political" statement. Rather, he was doing his religious duty in reminding his readers what the Torah actually says.

Hitchens notes that the episode from the Book of Numbers, Chapter 31, Verses 13-18 - where the Israelites perform the God-approved massacre of the Midianites - is often discussed by Israeli rabbis. In that story, the Torah describes how the Israelites have just done a brutal job on the Midianites, slaughtering all of the adult males. But, says their stern commander-in-chief, Moses, they have still failed him:

Moses, Eleazer the priest, and all the chieftains of the community came out to meet them outside the camp. Moses became angry with the commanders of the army, the officers of thousands and the officers of hundreds, who had come back from the military campaign. Moses said to them, "You have spared every female! Yet they are the very ones who, at the bidding of Balaam, induced the Israelites to trespass against the Lord in the matter of Peor, so that the Lord's community was struck by the plague. Now, therefore, slay every male among the children, and slay also every young woman who has known a man carnally; but spare every young woman who has not had carnal relations with a man.

It is impossible to read these verses and not have that gut-wrenching feeling of "how can this barbarity be part of the holy Torah." There are no easy answers. As someone who grew up in a humanistic-religious home, I realize that many religious Jews solve this dissonance by saying we should not apply these ideas in today's world. Indeed, many rabbis, professors and educators make a herculean effort to explain why these texts are not relevant to our generation. I have been blessed to hear some fascinating hermeneutical approaches from such great figures as Yeshayahu Leibowitz z"l, Nehama Leibowitz z"l, Hebrew Universtiy professors Uriel Simon, Moshe Halbertal and others. But here is Hitchens' counter-argument:

Now, it's common to hear people say, when this infamous passage and others like it come up, that it's not intended to be "taken literally." One also often hears the excuse that some wicked things are done "in the name of" religion, as if the wicked things were somehow the result of a misinterpretation. But the nationalist rabbis who prepare Israeli soldiers for their mission seem to think that this book might be the word of God, in which case the only misinterpretation would be the failure to take it literally. (I hate to break it to you, but the people who think that God's will is revealed in scripture are known as "religious." Those who do not think so must try to find another name for themselves.)

Is he right? Could it be that the effort to educate the masses of religious Jews that these texts are not to be taken literally is disingenuous and doomed to fail? Perhaps you cannot teach about the holiness and significance of the Torah, and at the same time expect people to condemn the many indigestible parts of the Bible advocating stoning, killings and massacres!

Hitchens, to be sure, thinks that the root of the problem is attaching holiness to these texts, and accepting them as a legitimate religious source. But he is ignoring a basic structural concept of Judaism - the idea that Judaism has evolved and continues to evolve over time. Throughout history Judaism never spoke in one voice. Over time, principles of interpretation were worked out by many commentaries when they encountered religious texts whose meanings were obscure or whose import was no longer acceptable. These commentaries constitute the so-called Oral Tradition (Torah she'be-alpeh), and they minimize the racism and brutality found in many Biblical texts.

We must acknowledge that certain religious texts in Judaism foment hatred and incite against non-Jews. That is the first step in any credible analysis. The next step could be either to ignore those texts or replace them with alternate texts. However one decides to relate to those problematic texts, it is still very much possible to appreciate and embrace the many aspects of Judaism which highlight equality and the sacredness of all human life. In my opinion, it is a worthwhile effort to offer a new interpretation of Biblical and Rabbinic texts -- one that unapologetically rejects those racist and violent views and rulings, and, at the same time, moves away from the literal meaning and expands our horizons so that our interpretation with brings us in line with the modern-day approach that emphasizes the inherent equality of all human beings and the duty to safeguard human rights for all.

Happy Birthday and Speedy Recovery, Justice Ruth Bader Ginsburg

2009-03-15T22:29:00.012-04:00

Today Justice Ruth Bader Ginsburg celebrates her 76th birthday, and I'd like to take this opportunity to wish her a Happy Birthday and a Refuah Shleimah!*

Justice Ginsburg's determination to continue serving on the Supreme Court despite suffering from pancreatic cancer is heroic and admirable. Ginsburg, who underwent surgery on Feb. 5, returned to the bench on Feb. 23 and looked healthy and cheerful as she vigorously questioned the attorneys appearing before the Court. A recent USA Today interview revealed that she continued to read legal briefs while in the hospital, and prepared herself for the return from the Court's winter recess, refusing to miss even one day of oral arguments. Talk about a work ethic! And when asked why she chose to attend President Obama's Feb. 24 address to a joint session of Congress, she responded by alluding to the bone-headed remarks by Republican Senator Jim Bunning (Kentucky) who predicted Ginsburg would likely be dead within nine months:

First, I wanted people to see that the Supreme Court isn't all male. I also wanted them to see I was alive and well, contrary to that senator who said I'd be dead within nine months.

All the more power to her!

In honor of her birthday, I will feature a quote from her dissenting opinion in the April 2007 case of Gonzales v. Carhart in which women's rights organizations brought a constitutional challenge to a federal ban on a particular type of abortion. This case dealt with a Congressional ban on a second-trimester abortion called "dilation and evacuation" (D&E), also colloquially known as "partial-birth abortion." In this medically-approved procedure, a doctor performs the abortion by dilating the cervix and then inserting surgical instruments into the uterus and maneuvering them to grab the fetus and pull it back through the cervix and vagina. The petitioners claimed this ban is unconstitutional because it imposes an undue burden on a woman's right to abortion based on its overbreadth and lack of a health exception.

The majority opinion upheld the ban. Justice Ginsburg wrote a powerfully persuasive dissent, attacking the majority opinion of the Court and noting that this case marked the first time the Court upheld a ban on a particular method of abortion. She strongly objected to the majority opinion because it marked the first time the Court upheld a law that did not make an exception to preserve a woman's health! In the following quote, she interposes in her opinion past quotes from the Supreme Court cases showing the Court's attitude to women's role in society, and reflects on how that attitude has changed over the years. It makes for fascinating reading:

Revealing in this regard, the Court invokes an antiabortion shibboleth for which it concededly has no reliable evidence: Women who have abortions come to regret their choices, and consequently suffer from "severe depression and loss of esteem." Because of women's fragile emotional state and because of the "bond of love the mother has for her child," the Court worries, doctors may withhold information about the nature of the intact D&E procedure. The solution the Court approves, then, is not to require doctors to inform women, accurately and adequately, of the different procedures and their attendant risks. Instead, the Court deprives women of the right to make an autonomous choice, even at the expense of their safety. This way of thinking reflects ancient notions about women's place in the family and under the Constitution--ideas that have long since been discredited. Compare, e.g., Bradwell v. State, 16 Wall. 130, 141 (1873) (Bradley, J., concurring) ("Man is, or should be, woman's protector and defender. The natural and proper timidity and delicacy which belongs to the female sex evidently unfits it for many of the occupations of civil life. ... The paramount destiny and mission of woman are to fulfil[l] the noble and benign offices of wife and mother."), with United States v. Virginia, 518 U. S. 515, 533, 542, n. 12 (1996) (State may not rely on "overbroad generalizations" about the "talents, capacities, or preferences" of women; "[s]uch judgments have ... impeded ... women's progress toward full citizenship stature throughout our Nation's history"); Califano v. Goldfarb, 430 U. S. 199, 207 (1977) (gender-based Social Security classification rejected because it rested on "archaic and overbroad generalizations" "such as assumptions as to [women's] dependency" (internal quotation marks omitted)). Though today's majority may regard women's feelings on the matter as "self-evident," ante, at 29, this Court has repeatedly confirmed that "[t]he destiny of the woman must be shaped ... on her own conception of her spiritual imperatives and her place in society." Planned Parenthood of Southeastern Pa. v. Casey, 505 U. S. 833, 852 (1992).

Justice Ruth Bader Ginsburg was appointed to the Supreme Court in 1993 by President Clinton, and has since been known as one of the liberal justices of the Court. To read a brief biography of Justice Ginsburg, click here (Oyez website). Ginsburg's positions on civil liberties in general, and women's rights in particular, have strengthened civil rights in America, and we need this fighter for children, women, and the downtrodden on the Court for many more years.
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* Hebrew for "full and speedy recovery." It is customary to say a special prayer for sick people on the Sabbath during the reading of the Torah, and to mention names of family and friends who are suffering from sickness. I don't know the full explanation for this, but the customary format for mentioning the names is [person's name] daughter/son of [person's mother]. In Justice Ginsburg's case, it would be: May God bless and heal Ruth Ginsburg bat Celia Bader and send her speedily a complete recovery.

To Err (When Reciting the Presidential Oath) Is Human

2009-01-22T00:27:00.014-05:00

Was Barack Obama properly sworn in as the 44th President of the United States?

The majestic, historic and awe-inspiring inaugural ceremony was marred by a flop caused by Chief Justice John Roberts. While administering the 35-word oath of office to Barack Obama, Chief Justice Roberts changed the order of the oath’s words, prompting hesitation by Obama and eventually botching the recitation of the oath.

According to Article 2, Section 1, Clause 8 of the Constitution, the oath is supposed to read:

I do solemnly swear (or affirm) that I will faithfully execute the office of President of the United States and will to the best of my Ability, preserve, protect, and defend the Constitution of the United States.

Roberts, who made the fatal mistake of delivering the oath from memory, flubbed his lines. Instead of saying the constitutionally-mandated version, Roberts said: "that I will execute the office of President to the United States faithfully," putting "faithfully" at the end of the phrase, and substituting the word "to" for "of."

As the whole world saw on television, that appeared to throw Obama off and caused him to stop in his tracks. He looked for guidance from the Chief Justice. A faint smile was detected on Obama's face, as if saying "you messed it up, now fix the mess."

But it only got worse. Recognizing something was off, Roberts then repeated the phrase, putting "faithfully" in the right place but without repeating "execute," saying incorrectly: “Faithfully the office of president of the United States.” Obama, who by now was completely thrown off track, then repeated Roberts' original, incorrect version: "... the office of president of the United States faithfully."

Luckily for the nation, both of them got back on track for the last, most important portion of the oath: "and will to the best of my Ability, preserve, protect, and defend the Constitution of the United States."

So what to make of this blunder? Already some are hinting that there is more to this screw-up than meets the eye. When John Roberts' nomination to the Supreme Court in 2005 was up for confirmation by the Senate, then-Senator Obama voted against the nomination. Was this Chief Justice Roberts' thinly-veiled attempt at snubbing Obama for that vote? Or is this, as law professor Dale Carpenter suggests, a "portent of an unusually uneasy relationship between the new administration and the federal judiciary?"

Those fanciful explanations are taking it a bit to the extreme. No need to search for conspiracy theories when there is a simpler and more straightforward explanation: To err is human. Yes, even the Chief Justice can err when delivering the constitutionally-mandated Presidential oath from memory. Had Roberts brought with him the Constitution, or had he prepared in advance a note upon which those timeless words were propertly written, this whole fiasco would have been avoided. But we learned the hard way that even great men suffer from hubris.

This event reminded us that even great figures must tackle and deal with human frailties. If two brilliant, Harvard-educated men could not refrain from botching such a simple procedure on such a momentous occasion, then surely we mortals are excused for the trivial mistakes we make in our daily lives. Especially if they are triggered by excitement and enthusiasm, as evidently happened on this occasion.

While constitutional scholars commented that this flop did not affect the legal validity of Obama's swearing-in, Obama decided he's not taking any chances. President Obama and Chief Justice Roberts tonight went through the drill again out of what White House counsel Greg Craig called "an abundance of caution."

The do-over took place in the White House Map Room in front of a small group of reporters. "We decided that because it was so much fun ...," Obama joked to reporters who followed him into the room. Chief Justice Roberts put on his black robe.

"Are you ready to take the oath?" he said.

"Yes, I am," Obama said. "And we're going to do it very slowly."

Roberts then led Obama through the oath. This time, smooth sailing from beginning to end.