Sleepless in Midland

Happy Bill of Rights day -- December 15

If you know that the 1st ten amendments to the U.S. Constitution are called the Bill of Rights, you would have scored that question correctly on the naturalization test for citizenship.

The Bill of Rights became a part of the U.S. Constitution on December 15, 1791, and President FDR proclaimed 12/15/1941 to be Bill of Rights Day. It stuck, although today there probably aren't that many people who celebrate it.

I plan to. For starters, I'll take a swig from a fifth, then plead the 5th. HA!

For anyone needing a refresher, read the entire Constitution, including the amendments, here.

Clinton is going to be a nasty lady when it comes to the Supreme Court nominations

I've been a one-issue voter since this campaign season got into full swing, that issue being the U.S. Supreme Court and the justices the new president will appoint.

Last week the very articulate Kevin D. Williamson put into precise language why it's going to matter in The Book-Burners. His focus is on free speech and how Democrats of Hillary Clinton's ilk seem ready to chisel away the 1st amendment because they so oppose the ruling in the Citizens United case which held that prohibition of a movie critical of a political figure was unconstitutional.

Let's get beyond that particular case and draw out some of Mr. Williamson's words about Clinton's attitude about the Supreme Court and its role in America. Here's an excerpt:

She began by arguing that the Supreme Court, and lesser federal courts, should be political partisans who take sides in disputes rather than adjudicate them according to the law. Many politicians — perhaps even most — believe that, or act in a way that suggests they do, but most of them feel at least the need to shamefacedly insist that judges are there to impartially apply the law. Not Mrs. Clinton. The Supreme Court that exists in her mind is the worst version of the highest judicial body, which is to say the American answer to Iran’s Guardian Council. The justices already wander into American-ayatollah territory too often, and it is only shame that constrains them. It is impossible to overstate the damage this is doing to our constitutional order, and to the legitimacy of the federal government itself.

What is worse — if something can in fact be worse — is that Mrs. Clinton seeks to unmoor the Supreme Court from the Constitution in order to pursue her own repressive and self-interested political program, namely the censorship of publications, organizations, and institutions that are critical of her.

Mr. Williamson is rightly concerned about the 1st amendment. But those of us out here in flyover country are concerned about the entire bill of rights. Once the court is "unmoored" from the Constitution, Obama would have been deemed correct, our great nation is indeed unexceptional.

Wise Latina Supreme Court Justice displays warning sign of workplace violence with fantasy about killing Scalia

When someone describes a fantasy about bashing a co-worker's skull in with a baseball bat they are giving us an important clue about their own psyche. A cursory look around the internet reveals such things as "Telling others about violent thoughts or fantasies" is a warning sign for workplace violence.

Similarly elsewhere we learn that "discussions of an attack, threatening co-workers or the boss" are warning signs of workplace violence.

So when Obama appointee Sonya Sotomayor fantasizes about attacking Justice Antonin Scalia with a baseball bat we shouldn't be too dismissive of it. She's broadcasting a violent tendency loud and clear.

Let's hope she can keep that hot temper under control. She'll take it out on litigants in the cases she hears. We're pretty much stuck with that. But we should all hope she doesn't take a bat to someone with whom she disagrees. And her co-workers should keep a wary eye on her but not let the fear of violent behavior influence their opinions.

Ten-HUT! The Texas militia may be recruiting if President Clinton bans guns

Gun owners are assuming that a Supreme Court packed with Hillary Clinton's appointees will probably ratify a law or executive order banning most if not all guns from possession by private citizens.

So what to do? Start digging holes in the back yard? Stock up on ammo and plan to go out in a blaze of glory when they come to your house like they did at Ruby Ridge and the Branch Davidian compound?

Michael Filozof has an idea. See The Coming National Gun Ban – and How the States Can Resist, to wit:

Should Stevens’s dissent [in Heller] become the majority opinion in a future case, conservative, pro-gun state legislatures could turn the “militias only” argument against the gun-banners by passing legislation expanding the membership of their state militias to all adult residents of the state, and specifically empowering all adults to purchase military-style semi-automatic rifles and magazines capable of holding more than ten rounds.

Governor Abbott should get started on that right away.

Post Script: It would only be a stop-gap. Once it hit the Supreme Court those "living constitutionalist" on the bench would suddenly be saying, "Hey, it's not that alive!"

If Republicans were serious about Clinton's skirting the law, they would try to pass laws outlawing that behavior -- same with Dem's outrage at Trump's tax loss carry forward

Hillary Clinton did some things that normal people wouldn't do but could have done great harm to the nation. But they weren't deemed illegal enough by FBI Director Comey to recommend prosecution. Thus the Clinton Defense was born. It would be easy to toughen the law. So here we have Texas Rep. John Ratcliffe proposing the "Classified Information Protection Act." Source: GOP bill kills the 'Clinton defense' for violating classification laws. Seems simple enough.

Two can play the game. Democrats are trying to hurt Donald Trump with assertions that he hasn't paid taxes in a while, and for evidence the publish what they say is a portion of one of his previous returns which claims a large loss which he carried forward to cut his future taxes. See Donald Trump's Billion-Dollar Tax Loss Is a Diversion From More-Serious Matters. From all accounts, Trump got good tax counsel and did nothing illegal.

But if Democrats are that upset about it, they would pass laws abolishing the tax loss carry-forward. Well? What are they waiting on?

Bill passed in House to nullify clauses that prohibit customers from complaining

We've heard the horror stories: Customer bought a lemon product or engaged a company that did a crappy job. The customer complained on social media. Then the company sued the customer for violation of the fine print in the agreement he had to accept in order to buy the product or obtain the service. Bummer.

Well, the U.S. House of Representatives is trying to rescue consumers from this outcome by passage of H.R. 5111: Consumer Review Fairness Act of 2016. Leonard Lance (R. New Jersey) sponsored the bill which will invalidate gag provisions in consumer contracts.

It passed the House a couple of weeks ago (9/12/2016). So the only obstacles are the Senate and the President. Will they go along with it? The above linked govtrack.us site gives it a 24% chance of being enacted, but that shouldn't stop anyone with a legitimate complaint. Any company attempting to enforce such a clause will have an uphill battle in the court of public opinion. And anyone sitting on a jury who checked an "Accept" button without reading pages and pages of text isn't likely to be too sympathetic to the company trying to enforce it.

Government should apply the same standard of guilt they applied to Hillary Clinton to everyone

Aside from die hard Hillary Clinton fans, just about everyone who watched this unfold thought she was guilty of something. But now we learn that FBI Director James Comey has given her a pass because of lack of intent. We should all be so lucky.

Books have been written about the myriad of laws ordinary people violate without even knowing it. But Hillary Clinton was given a pass because there was no intent to harm the United States.

OK. She lacked a criminal mind. So let's apply this standard to all laws and do away with those that don't require intent.

P.S. Ms. Clinton seems to have pleaded ignorance of those complicated computers, servers, and all that confusing software and jargon. How many of her fans buy that? In particular, how many of those who will vote for her because she's a woman buy that? There's this pesky stereotype out there about women and computers. But surely most women know their way around technology these days. Hillary is the exception. Isn't she?

My Starbucks tall was too short -- class action lawsuit may be your cup of tea

It seems as though plaintiffs' lawyers are constantly on the prowl for some reason to extract money from deep pockets. Here's another example.

Last week a class action lawsuit was filed against Starbucks Corporation for shorting the short cups -- shorting all cups, actually. They claim that the actual quantity of the product bought is as much as 25% less than the advertised volumes. Source: Starbucks being sued for underfilling lattes.

Starbucks' website says a Short is 8oz, a Tall is 12oz, a Grande is 16oz, and a Venti is 20oz. Take your measuring cup with you next time. While I would do nothing to encourage class action lawsuits, it is refreshing to see an effort to get them to stand by their claims.

You've probably guessed that I'm not a Starbucks regular. My last order there was for a coffee without milk or sugar. What I got didn't taste any better than the stuff I make at home. Now that I think about it, maybe that's what I ordered.

Anyway, this came to our attention via Future of Capitalism where Ira Stoll notes that it's slightly better that class action lawyers do these things for civil damages than ambitious attorneys general.

Thanks, Donald Trump, now let's see that list of justices

There are some of us out here in flyover country who are one issue voters this season -- supreme court justices.

Hillary predicted not long ago that the next president may have the opportunity to nominate three supreme court justices during the next one or two terms, and that was before Antonin Scalia died. That's a scary thought. For the future of our republic those nominees need to be strong believers in the constitution as it was written, not as a justice might want it to be. That's the difference between strict constructionists and proponents of a living constitution.

Conservatives know that Hillary's nominations would probably not be good for the citizenry, especially those who favor gun rights. Ted Cruz is the only one we can probably rely on for good nominations.

But now Donald Trump is addressing the issue by saying he'll name people he would nominate. Hooray! Right now it's looking as though a Clinton/Trump match up is a choice between horrible and unknown. So let's get those names vetted before the election.

Maybe you can indict a ham sandwich but you can't always prosecute a ham sandwich -- Rick Perry charges tossed out by appeals court

Just like the charges brought by the politically charged Austin prosecutor's office against Tom Delay were tossed out on appeal, the more recent charges against Rick Perry were tossed out on appeal.

If history repeats, the msm will try to minimize the reporting of this aspect of the case.

Scalia on use of foreign courts as precedent for U.S. law

There will be no shortage of observations about Antonin Scalia out there on the net today. But that shouldn't stop us from adding to the pile.

His death was a great loss to those of us who value the Constitution. I've called the approach "strict constructionist," but "originalist" seemed to be the favorite descriptive yesterday. In any event, Scalia appreciated the Constitution as the first and last word on a question of whether something is or isn't unconstitutional.

My favorite exchange involving Justice Scalia was about the use of foreign courts as precedent for U.S. law. Of note was his observation that those judges and justices who favored international law as precedent were picking and choosing only the foreign laws which supported positions they supported and ignoring the ones that didn't. See Full written transcript of Scalia-Breyer debate on foreign law.

We've talked about the next justice appointments previously on this blog, and I remain a one issue voter for primary purposes -- the candidate who I believe will make the best appoint(s) to the Supreme Court. Ted Cruz is still at the top of the list.

The Donald and eminent domain

We talked about this the other day in New Trump reality show -- Supreme Court Justice Apprentice.

The next president might be able to appoint as many as three Supreme Court Justices. And those of us who favor a strict construction of the Constitution naturally would like to see justices appointed to the bench who favor a strict construction and not view the Constitution as an elastic framework that can stretch to fit the mood of a whimsical public.

The only opinions we've seen from Donald Trump on the subject were his remarks about how much he favored the decision in Kelo v. City of New London, the eminent domain case, in which home owners were tossed off their land for use by a private developer who had convinced the local government of the benefit that would bring. As it turned out, the land became a vacant lot, and no one benefited. All pain, no gain.

What brings this back today is Star Parker's article titled Trump's Disregard for Private Property in which she made some important remarks about that specific topic with some history to boot:

The Fifth Amendment to our Constitution tells us: "No person shall be ... deprived of life, liberty, or property, without due process of law; nor shall private property be taken for public use, without just compensation."

The key question is, what is "public use"?

George Mason University law professor Ilya Somin sums it up as follows: "Until the early 20th century, most courts interpreted those words to cover things such as roads or power lines -- projects owned either directly by the government or by private owners who have a legal obligation to serve the entire public, such as utility companies."

"By the 1950s, however," Somin continues, "The original meaning of 'public use' had been largely abandoned. Legal elites came to believe that government planners should have nearly limitless authority to take property to promote growth and combat blight afflicting the urban poor."

Call strict constructionists old fashioned, if you want. But the words meant something to the founding fathers. Private property rights are the basis for a successful economic system, and they knew that. The Constitution should be treated as law not as a suggestion.

Is Hillary Clinton above the law? The U.S. needs its own Magna Carta

Magna Carta Day is still four and a half months away, but it might not be too early to start shopping for a pint of celebratory ale to avoid the rush. Just kidding about the rush. But events of the day could easily drive a person to drink.

The more we learn about Hillary Clinton's emails the more frightening it becomes. Apparently, the highly secret information put into her easily hacked private system were too damaging to national security to release under any circumstances. What ever it was, our enemies have long since purloined it, digested it, and adapted their own strategic plans accordingly.

The question on many of our minds now is whether the Department of Justice will do anything to punish Hillary Clinton. Or is she really too big to jail? This brings us to the Magna Carta.

Way back in the year 1215 a bunch of British barons revolted against King John. The outcome was the signing of the Magna Carta on June 15 of that year. And the enduring principle to emerge from that historic document was that no one was above the law. That principle has been carried forth to most democracies, and especially the United States.

But this time is different. If Hillary Clinton really is too big to jail, then it might be time for another Magna Carta event.

Joe Jamail -- It wasn't a bribe, it was grease

The morning paper told us that the legendary lawyer Joe Jamail died the other day. I lived in Houston during the time that he was making that legend, and everyone, I mean everyone, had a Joe Jamail story.

I attended a Christmas party where there were a bunch of people from the legal profession present and struck up a conversation with the husband of a lady who was a clerk in one of the civil courts. He told about how Jamail had a case in that court and requested a copy of a file from the clerk. She complied.

A few days later a case of scotch arrived at their house courtesy of Joe Jamail. Neither Jamail nor the clerk had done anything illegal. It wasn't a bribe. It was grease.

Here's another one. Jamail was suing the pants off someone, and the defense attorney was gamely trying to keep the jury award low. The defense attorney contended that the plaintiff was asking for more than they expected to receive, and he told a heartwarming story about how he worked for his father as a child. When it came time to be paid he asked to be paid for more work than he did knowing his dad wouldn't give him all the money he asked for.

So when it came time for Jamail's summation he said about the other attorney, "He told us right here that he lied to his own father!"

Maybe someone will compile all the Joe Jamail stories for an entertaining blog post.

Governor Abbott opted for freedom when he killed mental health bill

We have our local morning paper to thank for bringing this to our attention, although it was in the form of another newspaper's editorial presented as a Guest View. (See snapshot on the right.) It was about Texas Senate bill 359, which if it had not been vetoed, would have given employees at a hospital or free standing emergency medical center the right to detain someone for four hours if a physician determined that person was mentally ill and decided restraint was necessary to prevent that person from hurting himself or others.

In other words, the medical center staff would be given the powers of arrest that are traditionally reserved for law enforcement officers. What could possible go wrong? The aforementioned editorial quotes a statement from LULAC's state director saying that the action could be taken against a normal person who simply lost it because of a long wait for help in an emergency room. We can all see that happening. And suddenly he's got a mental illness label to carry around with him for the rest of his life.

This may not be an example of the liberal fascism Jonah Goldberg talks about, but it's not far off. People old enough to remember the Soviet Union may also recall the way they used a diagnosis of mental illness as an excuse to silence dissidents. By the way, the author of the bill is Dallas Democrat Royce West.

But for the best argument against the bill, see Governor Abbott's veto Proclamation. Excerpt:

The Fourth, Fifth, and Fourteenth Amendments to the United States Constitution limit the state's authority to deprive a person of liberty. Under our constitutional tradition, the power to arrest and forcibly hold a person against his or her will is generally reserved for officers of the law acting in the name of the people of Texas. By bestowing that grave authority on private parties who lack the training of peace officers and are not bound by the same oath to protect and serve the public, SB 359 raises serious constitutional concerns and would lay the groundwork for further erosion of constitutional liberties.

Medical facilities have options at their disposal to protect mentally ill patients and the public. Many hospitals already keep a peace officer on site at all times. For smaller facilities, law enforcement are always just a phone call and a few minutes away. Medical staff should work closely with law enforcement to help protect mentally ill patients and the public. But just as law enforcement should not be asked to practice medicine, medical staff should not be asked to engage in law enforcement, especially when that means depriving a person of the liberty protected by the Constitution.

Yes. Let's protect those Constitutional liberties. There are too many people trying to take them away.

This month marks the 10th anniversary of Kelo vs. City of New London -- Institute of Justice takes note

June 23 is the anniversary date, and in a press release yesterday the Institute of Justice notes that nothing was ever done with the property taken in that imminent domain case:

The decision stripped any protection against eminent domain abuse by the government out of the U.S. Constitution. If a developer merely promises to pay more taxes on your property, the High Court ruled that the government can take your home, your business or your land and hand it over to that private developer for his or her private use.

The only thing more outrageous than the decision is what happened to the land since then: nothing. As this video demonstrates, the land taken through the Kelo ruling to complement the nearby Pfizer facility is home now to nothing more than weeds and feral cats. And Pfizer, which received a generous package of financial incentives and tax breaks to lure it to New London, closed its facility there in 2010.

Ms. Kelo was a martyr in the fight against the heavy hands of big government and big business working together. She fought and lost, but the silver lining is that many states have changed their eminent domain statutes to provide a little more protection to land owners.

Here's the link to the above mentioned video.

Via futureofcapitalism.com where it was noted that eminent domain is just one way a government can take property. "At least with eminent domain the taking is clear and visible; with zoning and building restrictions, the value of the property is taken away without any compensation, let alone "just" compensation."

You wouldn't think this was necessary -- bill requiring a warrant to search body cavities at roadside traffic stops -- but it is in Texas

This is a little bit hard to believe, but some Texas DPS officers were sticking their fingers where they didn't belong. Forbes told the story at The War On Drugs Now Features Roadside Sexual Assaults By Cops.

One particular incident happened on Memorial Day in 2012 when two women and some children were driving home to Houston from the beach. They were pulled over for speeding, and a DPS trooper claimed he smelled marijuana. A routine search turned up paraphernalia but no dope. So he ordered a female trooper to search their body cavities right there on the side of the road.

Texas state Representative Harold Dutton of Houston is trying to put a roadblock on those searches with HB 324 which would require a search warrant before an anal or vaginal cavity search by law enforcement during a traffic stop. The bill passed the House and as of this writing has not been brought to a vote in the state Senate.

The bill wouldn't stop a search without a warrant, it would only mean it couldn't be conducted right there on the side of the road.

What a contrast between young people today and young people on Pearl Harbor Day

Sunday was an anniversary of the day that will live in infamy, December 7, 1941, the day the Japanese bombed Pearl Harbor. What followed was an outpouring of nationality as Army recruiting offices were flooded with volunteers, some of whom were so anxious to defend the country that they lied about their ages to get in.

Contrast that with the news that students were so traumatized by the grand jury decisions not to indict Michael Brown and Eric Garner that the dean of Columbia Law School declared that students who were impaired by those events could postpone their exams.

It inspired Thomas Lifson to remark:

What kind of lawyers does Columbia University plan to foist on the courts and public of the United States? Apparently people so emotionally vulnerable that an action of a grand jury could traumatize and in effect disable them are worthy of a law degree from one of the nation’s most prestigious law schools. Clients beware that your Columbia-certified future lawyer might fall apart if a ruling goes against him or her and become unable to represent your interests!

In the students' defense, it was the Columbia Law School administrators who did this. We really don't know how traumatized the students actually were. For these future lawyers it was probably less about being traumatized and more about gaming the system.

Prosecutors case against Rick Perry sure looks more like effort to influence politics than quest for justice

Without knowing the law, most of us had a gut feeling that the charges against Rick Perry were motivated more by left wing politics than any real law violations. Well, some very distinguished individuals, including no less a scholar than Eugene Volokh, filed an amici curiae in the case.

They contend that prosecution of the case violates the doctrine of separation of powers, that Perry is entitled to absolute immunity, and prosecutors are attempting to criminalize free speech. Those hyperlinks go to Volokh's blog at Washington Post and contain links to the actual briefs.

Get one side of a case presented by a good lawyer, and one might be tempted to agree with it. That's why judges and jurors get both sides before they render a verdict. But it's hard to argue with the logic presented by Volokh, et al.

This comes us by way of HotAir.com which concludes:

The unwashed masses may have had this one right from the very beginning in at least one regard. How can you take the Governor to court for performing a function of the job which is specifically spelled out in his duties? In Volokh’s learned opinion, you still can’t.

That same prosecutors' office successfully removed Tom DeLay from the political arena before their case got tossed out. So we'll have to wait to see how far this one goes in court and how much damage it does to Perry.

Eric Holder's corruption now widely known

"Eric holder is the worst attorney general since Mitchell under Nixon which, to most veterans of the department, will tell you they consider to be the nadir of the justice department." That was Hans von Spakovsky quoting someone from the Clinton administration -- hear it at around 13:30 in this C-Span video.

There was the Marc Rich pardon, the New Black Panther voter intimidation case, Operation Fast and Furious, the IRS scandal, and more. This Attorney General represents all that can be wrong with a law enforcement agency, and unfortunately, it's the highest law enforcement agency in the country. It is a very bad thing when they don't follow the law.

Anyway, John Fund and Hans von Spakovsky penned an article published at Washingtontimes.com titled The injustice of Eric Holder -- Average Americans aren’t blind to the Justice Department’s politicization in which they cited a recent poll suggesting that many Americans have become aware of just how bad Holder is. They said:

About a third of respondents didn’t know who Mr. Holder is (37 percent). However, those Americans who knew Mr. Holder gave him the second-lowest “positive” rating of anyone or any organization on the survey at a mere 15 percent. Only Arizona Sheriff Joe Arpaio had a lower “positive” rating than Mr. Holder. The attorney general’s “positive” rating was less than half of the positive rating of the Republican Party and 27 points behind that of his boss, Mr. Obama, who was rated favorably by only 42 percent of respondents.

They're optimistic:

Contrary to what liberal elites think, the average American isn’t dumb and can see when someone is abusing his office and allowing politics to drive his decision-making. They may think they can fool the American people, but that is a mistake that many arrogant politicians and government officials have made in the past, and Mr. Holder is just another in a long line of such government officials.

Is that wishful thinking? Team Obama has done a pretty good job of fooling the American people up til now. But maybe people are finally waking up.

Shakespeare's kill all the lawyers line explained

We've all heard the Shakespeare line, "The first thing we do, let's kill all the lawyers." It's a very popular quote, but here's a bit more about it.

Apparently there are two explanations for the contextual meaning. One, the most obvious, is that in their work lawyers annoy a lot of people, and doing away with the lot of them would leave mankind better off.

The other is not so obvious.

According to the attorneys' interpretation—one supported by many but not all English scholars—Shakespeare's point is to portray lawyers as the guardians of the rule of law who stand in the way of a fanatical mob. Source.

Or as Justice John Paul Stevens opined, lawyers are standing guard against a totalitarian government. He's right, but there will be other lawyers fighting in favor of totalitarianism. So it may be a wash.

Anyway, this come to us by way of wsj.com where you can find Jacob Gershman's excellent article on the subject cleverly titled To Kill or Not to Kill All the Lawyers? That Is the Question.

Regardless of what Shakespeare originally meant by having a character recite that line, the popularity of the quote tends to validate the feeling that lawyers are very annoying, except the ones representing you or your interests.

Jury nullification

I ran across this article today titled Good News: Jury Nullification is Interfering With Marijuana Convictions at a website named The Daily Sheeple. If that name deters you, try one at the Houston Chronicle.

Their focus was on marijuana cases, and with the current trend toward decriminalization of marijuana, jury nullification would seem to fit in nicely with a juror mindset that wants to correct perceived wrongs in a setting designed to correct wrongs.

The issue of jury nullification reminded me of my own call to jury duty a couple of months ago here in Midland, Texas. There were two cases on which I was on the panel - not the jury itself, just the jury panel. I got struck both times. One was a criminal trial in which the defendant was charged with "failure to appear," i.e., having an obligation to show up at a trial and skipping it. During the prosecutor's voir dire he asked whether everyone could have an open mind about the penalty of 2 to 10 years in the slammer. When asked if probation was a possibility, the prosecutor answered that it was not.

More than a few potential jurors said they would have a problem with that. The words "jury nullification" were never spoken, however the prospect of a mandatory jail sentence would surly have weighed on the minds of some of the jurors in the guilt/innocence phase. After all, why didn't they try him for the crime with which he was originally charged? Instead they picked what they thought was an easy one to prove.

A bunch of us on the panel probably got challenged for cause when the attorneys conferred with the judge, because when they called out the 12 jurors they got all the way to number 33 on the 36 member panel.

Anyway, jury nullification can apply to other than the marijuana cases, and in this case, the prosecutor was wise to weed out those who might be tempted to do it. It certainly helped the prosecution in this case as the jury sentenced the defendant to three years, one more than the minimum.

Editor's note:
If one believes the morning paper, jurors here are a step ahead. They're nullifying the whole process by failure to appear for jury duty. -- Robo-ed. | No sheeple here. -- Sleepless.

Jury duty - voir dire weeded out conservatives in personal injury case

Jury duty is something we all would prefer not to have to do, but after it's over with we're glad we did it. Kind of like a bowel movement.

For the past two mornings I've reported for duty at the appointed time, marched off to a court room, and sat through lawyers' drills to weed out anyone not inherently favorable toward their cases, and got weeded out.

If you listen closely to the lawyers in the voir dire -- you really have to listen closely because they quiz you -- you can figure out what they're looking for in a juror.

For example, yesterday morning in a voir dire for a personal injury trial jury the plaintiff's lawyer asked an interesting question. "Does anyone listen to talk radio?" Talk radio is the one form of media dominated by conservatives. And it's a good guess that people who listen to talk radio are more likely than not conservative. There are a couple of forms of conservatism, but the one the lawyer sought to identify was fiscal conservatism, or to frame it in another way, stinginess.

Those people who raised their hands probably got struck. Because what a plaintiff's lawyer wants is a juror who is generous. And here, "generous" doesn't mean donating time or money to churches or non-profits. It means generous with other people's money. But since he was trying to identify panel members to strike, he tried to identify the conservatives. To ask "Who watches MSNBC?" would have been way too obvious.

Midland Reporter Telegram confesses code violations on front page

Regular Sleepless in Midland readers know all about the Midland, Texas, city code prohibition against the use of police radio scanner traffic.

So it was interesting to see a front page article in the Midland Reporter Telegram, aka the morning paper, about scanner usage by news media, including themselves. They've been doing it for years in flagrant violation of local code. Meanwhile, their editorial writers serve as public scolds.

To be fair, they say in the article that they're trying to do better and won't actually publish "scanner reports online and in the newspaper." Here's the excerpt:

The Reporter-Telegram’s has a policy against publishing local scanner reports.

“At one time, the Reporter-Telegram was one of the biggest offenders, but this is information that has not been confirmed by law enforcement authorities or journalists, which is why we stopped using scanner reports online and in the newspaper,” said Editor Stewart Doreen.

That doesn't get them off the hook. They seem only concerned with publishing the actual words heard through the scanner. However, if they use the information in any way for their benefit  -- to get a lead, to further a story, to get a jump on the competition, etc. --  they've violated the code.

Here's the actual code language:

6-1-9. Police radio; interception of communications.
No solicitor, or other person, not being authorized by the City, shall intercept any communication and divulge or publish the existence, contents, substance, purpose, effect or meaning of such intercepted communication, and no solicitor or other person, not being entitled thereto, shall receive or assist in receiving any message emanating through the medium of KKA-662, and use the same or any information therein contained for his own benefit, or for the benefit of another solicitor or person.
(Ord. of 3-24-1953)

We've had fun with this in previous blog posts. It's a pretty good example of an antiquated law that no one has the courage to repeal. But the news media maintain a cozy relationship with government. And just like David Gregory gets away with brandishing an illegal rifle magazine on national TV, they know the government won't touch them. Laws are for the little people.

Editor's note: Could this be a prelude to an announcement that the emergency services are going to hit up city coffers for a high tech radio system that bypasses scanners? Robo-ed. | Hmm. We'll have to keep an eye out for that. Sleepless.

Top ten Obama constitutional violations of 2013

In a blog post a while back I made passing mention of Obama's violations of the constitution which prompted an Obama supporter to email an objection to that accusation. At the time the most obvious violations were the recess appointments and the refusal to enforce immigration laws. But that was back in 2012. Along came the Obamacare implementation, and Obama really got busy.

Ilya Shapiro has compiled a list of ten violations this year alone in an article in Forbes. See the article for details, but the list is as follows:

1. Delay of Obamacare’s out-of-pocket caps.

2. Delay of Obamacare’s employer mandate.

3. Delay of Obamacare’s insurance requirements.

4. Exemption of Congress from Obamacare.

5. Expansion of the employer mandate penalty through IRS regulation.

6. Political profiling by the IRS.

7. Outlandish Supreme Court arguments.

8. Recess appointments.

9. Assault on free speech and due process on college campuses.

10. Mini-DREAM Act.

So making outlandish Supreme Court arguments -- number 7 -- is a violation of the constitution? Boy. Tell that to all the lawyers who do it all the time.

P.S. Allahpundit adds to the list.

Fake DNA

Not long ago we talked about the proliferation of Craigslist ads for positive pregnancy tests. This is even worse. It's the revelation that fake DNA can be manufactured. (This was revealed in 2009 and comes from deep in my "pending" list.)

An article titled Israeli Scientists Prove DNA Evidence Can Be Faked described how scientists could make some DNA to match a sample. To wit:

In the second experiment, the team used a pooled sample of many people's DNA profiles that were stored in law enforcement databases. The scientists cloned tiny snippets of the DNA, created a library from the data, and simply mixed the elements together to match any profile required. According to Frumkin's team, such a "library" of 425 different DNA snippets could cover any possible profile.

They say the faked DNA lacks certain molecules and that tests could detect it if the tests were conducted.

Meanwhile, a year ago -- July of 2012 -- there were splashy headlines screaming Justice Dept., FBI to review use of forensic evidence in thousands of cases because of flawed forensic evidence which could have resulted in the conviction of innocent people. A year later -- July of 2013 -- we see U.S. reviewing 27 death penalty convictions for FBI forensic testimony errors. It would be nice if they finished up their review before the defendants get executed.

When we hear the phrase, "science doesn't lie," it's worthwhile to remember that science is only as good as the people performing it.

Nanny state update -- Coffee mug as drug paraphernalia

From Overlawyered.com we learn that 22 state attorneys general have signed a letter addressed to Urban Outfitters asking them to stop selling a coffee mug that has a fake prescription for coffee on it.

Wow!

Maggie Thurber gives them a good fisking at Watchdog.org. As she notes, that the likelihood that someone might be tempted to abuse prescription drugs because of a joke on a mug is ludicrous.

What about those mugs that say "best dad" and such? Isn't that false advertising without some empirical evidence? Attorneys General, check your kitchen cabinets.

[It was probably the physician on the script that brought the law down on them. Dr. Feelgood? Had to be a druggie. Robo-ed.]

Via Cato.

Eye on Midland -- parade/train collisions dropped 100% since the new law

Parade permits -

Looks like the Midland, Texas, city council is going to "OK" the Juneteenth parade this year, a parade that has taken place along the same route for many, many years, perhaps decades. But this time is different.

Last year a train hit a different parade, and the shifting into high gear of the city council's instinct to exert control follows tragedy like a caboose follows a train. There just had to be a new law. Now no parade can cross the tracks unless city council grants an exception. But to their credit, train/parade collisions have dropped 100% since they passed the new law. Never mind that the one collision was a once in a millennium event, you can't argue with statistics.

So along came the Juneteenth organizers following the new rules and seeking the council's permission to cross the railroad tracks. All but one of the council members said "OK," which leaves us to speculate that the one dissenter must think the trains are hiding in the weeds, waiting for some unsuspecting parade to cross the track or that parade participants are incapable of stopping on their own. Maybe that's a good example of the bigotry of low expectations.

Typically, city police officers man the parade route, so one has to assume that one of them will be posted at the RR crossing to watch for trains. The officer could stop the parade if a train comes along. But the city council had the opportunity to make an imprint, and so they did.

Previously on these pages: New parade permit rule - minorities hit hardest.

Burger King -- have it your way, but hold the phlegm

Have it your way was once a popular refrain in a Burger King ad. But in this case a deputy sheriff named Edward Bylsma in Vancouver, Washington, didn't get the burger he expected. Some miscreant behind the counter spit in it before handing it to him. Gross.

But the deputy sheriff didn't eat it. Instead, he opened the bun, discovered the spittle, sent it off for a DNA test, and identified the culprit. The spitting punk pleaded guilty to felony assault and was sentenced to 90 days in the slammer.

But here's where the story turns nasty. The deputy sheriff was so traumatized by the sight of the spittle that he suffered emotional distress. At least that's what he claimed in his lawsuit against Burger King and the franchisee under the state's product liability law. The lower court threw it out because he suffered no physical injury. But on appeal the state supreme court ruled in January, 2013, that emotional distress without physical injury was sufficient to make a claim.

So unless it gets settled, the deputy sheriff will have his day in court. Via Reasonably Disgusting.

And that raises another question. What if Bylsma is such a good story teller that jurors are so traumatized by his testimony that they, too, suffer the same emotional distress he suffered? Could they collect, too?

They probably could in one of those Judicial Hellholes. Washington only got an dishonorable mention, but they're trying to move up.

Doing jobs Americans won't do -- non citizens may serve on jury duty in California

A bill has passed the California Assembly that would let non citizens serve on juries. That's a first in the nation, according to Associated Press.

Jury duty is a job most people don't want. So it makes sense to turn it over to the people who do the jobs Americans don't want to do. But to make it worthwhile, the Assembly should pass a law allowing people called for jury duty to delegate the job and the jury pay to someone who needs it. It's only fair.

Via volokh.com.