LOLrepublicans

Get real:

People who want to vote in [February's Virginia Republican primary, which is open to all qualified voters] must sign a loyalty oath swearing their intent to vote in November for the party's nominee, whomever that winds up being.

Remarkably, said "loyalty oath" was actually approved by the State Board of Elections. Lawsuit in 5 ... 4 ... 3 ... 2 ...

Cultural Learnings of America

Rep. Chip Pickering, a potential successor to retiring Mississippi Senator Trent Lott, was featured in the film version of Borat:

Watch the Chip clip.

Sometimes you just don't know whether to laugh at or be disturbed — indeed, frightened — by these people. And I don't mean Borat.

Court sends mixed message to perverts

To time-stamp or not to time-stamp one's surreptitious photography.
Townsend, who didn't time-stamp his surreptitious photography, managed to elude three felony charges for videotaping three different women naked and without their permission, in a place where they had a reasonable expectation of privacy (Walworth County).

Townsend was charged under an amended Wisconsin statute that became effective on December 18, 2001, but since investigators were unable to determine exactly when the tapes were made, the criminal complaint recited time frames that straddled that date, e.g., “between November 1 and December 31, 2001.”

In fact there was a substantially identical statute in effect prior to 12/18/01, but it was moved by the amendment from the 'Crimes Against Morality' chapter to the 'Crimes Against Reputation, Privacy and Civil Liberties' chapter, and renumbered.

Not a problem, argued the State, we'll leave it up to the jury to decide when the recordings were made and that will determine whether it was a crime against morality or a crime against reputation because, after all, the statute — and, therefore, the crime — was the same; it was simply moved and renumbered. No biggie.

Nope, sorry about your luck, said the District II Court of Appeals, you forgot to cite the pre-12/18/01 statute number in the criminal complaint, and your proposed course of action would violate Mr. Townsend's constitutional right to be informed of the exact charges he faces in order to prepare an effective defense. Townsend dodges three felony bullets.

Townsend also challenged the four misdemeanors he was charged with, which involved knowingly “installing” a surveillance device with the intent to observe nude or partially nude persons without said nude or partially nude persons' consent.

Townsend claimed “install,” which isn't specifically defined by statute, means “permanently affix.” Yes, it may mean “affix,” said the Court of Appeals, after consultation with the New Oxford American Dictionary, but it may also simply mean “place,” and, furthermore, it would be absurd to interpret the statute to exclude hand held cellphones, which are the instruments by which a lot of your perversion is getting facilitated these days.

So, Wisconsin perverts, you're advised to consult your pre-12/18/01 surreptitious photography and adjust yourselves accordingly.

State v. Townsend (.pdf; 9 pgs.).

Someone's writing, Lord

Plaisted, that is, and it's a classic.

Definitive, even.

And one more summing up for the road, from the Brawler.

A law professor, unsurprisingly, thinks the original bumper sticker should have had a footnote: “The desire to coexist is the right instinct, but it alone won't get us very far.”

Did anybody suggest it would? And, as the folks at Whallah! pointed out about a week ago, “They weren't saying we could sing Kumbaya with Hitler in the first place.” Which is one of the reasons the “parody” fails utterly.

The “coexist” bumper sticker is nothing but an idealist, pacifist message. So in the same breath that “lefties” are getting castigated for lacking in civility, so-called conservatives — many of whom describe themselves as followers of Jesus, one of the ultimate pacifist idealist figureheads — are marshaling themselves in strenuous defense of some pre-Thanksgiving turkey's deliberate provocation of pacifist idealists as “smug little twerps”?

And equating Islam with Nazism? Aren't these the same characters who flew off the handle when Ward Churchill, in the context of Hannah Arendt's technocrats, referred to employees at the World Trade Center as “little Eichmanns”? Now all of a sudden there are nuanced, rationally defensible justifications for playing the Nazi card?

Suddenly it's all about context, is it? How absolutely fascinating and instructive. Gee, I'll have to remember that.

Apparently they're pretty selective when it comes to whom they allow to get called Nazis, or any other epithets, for that matter.

But the main reason this so-called parody fails is the same folks most likely to slap the coexist bumper sticker on their cars are also the least likely to pay any attention to the “satirists” and their little cadre of apologists.

They're also far more likely to be actually doing things to promote coexistence, rather than hammering out eleventeen blog posts per day laden with manufactured outrage and cognitive dissonance, which doesn't get anyone anywhere.

For the record

While I'm duly flattered that the Journal-Sentinel's Tim Cuprisin done gimme some link lovin' over yonder, I'm afraid I have to take exception to his characterization of my being "up in arms."

I ain't up in arms, I'm bemused by the innumerable layers of irony, which you practically need a spreadsheet to keep track of. The little episode has also spawned some of the funniest expressions of faux-outrage and self-righteous blather I've seen in weeks.

One can start by having a gander at a trio of posts, starting with this one, put up by the Brew City Brawler today.

If I was so inclined, I'd say that letter from the Interfaith Conference was a Gift From God Her/Himself, given that its recipient and his clownish acolytes are apparently milking it for all its worth.

The bumper sticker Nazis

I couldn't resist having a peek at the apologia pursuant to the purportedly parodic defacement of this bumper sticker after reading Milwaukee journalist James Rowen's interesting post here.

Among the apologists is Rick Esenberg of Marquette Law School, who writes:

But appropriating the symbols of these traditions and assembling them into a command that is probably most often expressed by people who do not follow (or follow loosely) any of them strikes me as patronizing.

And this suggestion isn't?

Like an addendum to a construction contract that both deletes and adds an equal number of Allen-Bradley limit switches, I'd say the patronizing v. patronizing here is what we call “a wash.”

It's funny, because I know a lot of, for example, non-Christians who conduct themselves in a manner more in accordance with the admonitions of the founder of said religion than most of the ones who parade their alleged Christianity like a Macy's balloon.

Personally I prefer less hypocrisy and cognitive dissonance and more intellectual honesty in a bumper sticker:

Bad week for creationists

Looks like the “intelligent design movement” picked the wrong week to continue sniffing glue.

First, PBS brought its oft-celebrated dissembling modus operandi to the national airwaves. Then, “intelligent design theorist” Michael Behe was forced to admit that one of the central claims in his book, The Edge of Evolution, is demonstrably false.

Now, one of the other “intelligent design” top dogs, mathematician and theologian William Dembski, has been caught misappropriating a computer generated video, evidently the copyrighted product of Harvard University and a corporation, XVIVO.

The Behe episode is especially entertaining, as he was originally exposed by a 24-year-old female graduate student named Abbie Smith. In fact, Behe's initial response was to blow her off, for being just that, the classic ad hominem fallacy or, in this case, the argument against the woman.

But a fellow named Ian Musgrave took up cudgels on Ms. Smith's behalf and initiated a series of open letters, to which Behe responded at his Amazon.com blog. The entire exchange is archived here. It's a lot of reading, is quite technical, and refers to a lot of side links (all worthwhile), but it's instructive, to say the least.

Ultimately, Behe doesn't have the balls to concede the point to Ms. Smith, who made it in the first place, but rather to Musgrave.

Smith, who is rapidly becoming a cause célèbre among the biological sciences crowd, maintains a blog called ERV (short for endogenous retrovirus, since she's a researcher of HIV/AIDS). She also provides laymen's translations of her original Behe critique here and here.

In fact it was Ms. Smith who busted Dembski on the Harvard/XVIVO video as well.

That bit of unintelligent redesigning is both shameless and shameful, given the ID movement's agenda to retool scientific methodology by insisting that it allow for the Hand of Jesus in the construction of cellular organelles.

Dembski is traveling about, like a circus clown or monkey, charging several grand a pop to deliver lectures backed by a video swiped from Harvard researchers, from which he's removed the biology and added subtitles describing cells as “lilliputian machinery factories” or some such nonsense.

He's also appended to it an absurdist narration, which Abbie Smith describes as sounding like South Park's Big Gay Al.

PZ Myers of Pharyngula has a bit more on Dembski's opéra bouffe here. It might be nice to think any of this was surprising, but it isn't. It's typical. And, you can count on the glue sniffing to continue.

Re-elect Ziegler in 2017

So now that Wisconsin Supreme Court Justice Annette K. Ziegler's public hearing is complete, she'll be getting on with the business of the court for the next ten years or so. Some of my colleagues are none too pleased with a remark made yesterday by Judge Ralph Fine, one of the three State appellate judges who conducted the hearing.

Fine said Ziegler's failures to disclose her financial relationship with the West Bend Savings Bank while presiding over actions involving it as a party “hardly register as 'a blip on the screen,'” as the Journal-Sentinel reported.

One of the problems with this observation is that there were 11 blips. And then some more. Another is it closely parallels, in terms of dismissiveness, Ziegler's now-infamous excuse of having performed a “gut check” in determining whether or not she needed to violate judicial ethics guidelines by not disclosing the relationships.

So now we have a judge's duty to disclose potential conflicts of interest that make her almost an adversary to a party before her being characterized in terms of gut checks and blips on ethical screens.

While Fine may be correct that Ziegler's numerous lapses pale in comparison to other (unspecified) judicial misconduct, it's not his function to perform that analysis. It's for the members of the Supreme Court — to whom Fine et al are reporting — who will determine what, if any, sanction Justice Ziegler is to receive, albeit based on this panel's recommendations.

Speaking of legal analyses, mal contends objects to a law professor's remarks as reported in this State Journal story from the other day:

I would describe the misconduct as significant in the sense that it raises some questions about Justice Ziegler's judgment. But I wouldn't call it serious, in the sense that I think it extremely unlikely that it had any actual impact on any decisions then-Judge Ziegler made.

This is a rough statement of the classic “fair trial” analysis that appeals courts perform when confronted with the question of whether a losing defendant got a raw deal below.

In other words, the system can tolerate a certain amount of ineffective lawyering, or even mistaken rulings at trial on whether to allow certain pieces of evidence, for example, but the question remains as to if the accumulation of error gives rise to a fundamental denial of due process to the losing party.

The trouble here — and where the application of that test arguably fails — is that parties in the subject cases did not even have the opportunity to decide whether or not they wanted to continue proceedings in Judge Ziegler's courtroom, since they were never apprised of the judge's financial relationships with their adversaries.

But what Prof. Kritzer is suggesting is that yes, Ziegler should have disclosed her financial relationships but no, her failure to disclose had no effect on her ultimate disposition in a particular case. The party adverse to the party with whom Ziegler had the financial relationship would have won — or lost — in any event. And, also importantly, Judge Ziegler realized zero personal benefit in ruling as she did.

Doubtless some form of this test will inform the Supreme Court's impending decision that their newest junior associate endure the mildest of reprimands.

As Prof. Benesh of Marquette Law School suggests, the degree of punishment may be measured against the public's trust in the integrity of the system.

To which I might add, the wisdom of subjecting the composition of a State Supreme Court to the whims of the general electorate. That process is by no means as “non-partisan” as the theory — and the State law — would have us believe, as the observations of both Ziegler's defenders and detractors clearly show.

Lying for Jesus

I didn't know JesusIsJustAlrightWithMe had a blog. JIJAWM makes the rounds, fighting the good and reasonable fight against the superstitious and the gullible, at several of the local conservative circle jerks, which is why I don't see him much anymore, since I gave up reading them. For Lent. Permanently.

Anyway, JIJAWM has some fun observations on the War on Christmas™ today, featuring a fellow by the name of Mat Staver. Staver is a Florida attorney who gave up working for a living, litigating workers' comp cases, in favor of accepting tax-exempt tithes from the superstitious and the gullible, originally under the auspices of the late, unlamented Jerry Falwell.

Staver also turned up representing some fifth-tier plaintiffs in the Bush v. Gore circus that took place in that State's courts in 2000. Despite the very limited questions he was allowed to address, and the fact that the judge dozed through most his presentation, Staver constructively claimed sole responsibility for installing Bush to the presidency on his radio show, which airs weekdays at 3 p.m. on Milwaukee's own 107.7 FM.

From the archives, here's an example of the type of unseemly shenanigans Mat Staver engages in.

In January, 2002, beneath the heading Supreme Court Justice Promotes Judicial Activism, Staver posted the following commentary on his website:

Supreme Court Justice Stephen Breyer promoted his concept of judicial activism in a speech given at the New York University School of Law. In his speech, Justice Breyer stated that “Literalist judges who emphasize language, history, tradition and precedent cannot justify their practices by claiming that is what the framers wanted.” This is an incredible statement by a Supreme Court Judge.

Incredible? Not really. What was incredible, however, is how Staver completely removed this phrase from its proper context.

In fact, there is no period at the end of the phrase Staver quote-mined, but rather a comma, and the sentence goes on to say: "for the Framers did not say specifically what factors judges should emphasize when seeking to interpret the Constitution's open language." This is not an incredible statement at all. It's a fact, and a fact that has informed the debate surrounding the so-called doctrine of original intent for many, many decades.

Staver also failed to mention that appended to this particular sentence of Justice Breyer's was a footnoted reference to Original Meanings: Politics and Ideas in the Making of the Constitution, by Jack Rakove, a Pulitzer Prize-winning law professor at Stanford University.

As a lawyer, Staver should know that when he's citing a footnoted remark, he's to include the footnote in his citation. But, what can you expect from a guy who replaces a comma with a period.

Staver then proceeded to pose the following presumably rhetorical question:

If a judge interpreting the Constitution or a statute does not consider language, history, tradition or precedent, then what does a judge consider?

Why didn't Staver let Justice Breyer answer that question? Breyer did, in the same speech from which Staver misleadingly mined his quote:

Judges can, and should, decide most cases, including constitutional cases, through the use of language, history, tradition, and precedent. Judges will often agree as to how these factors determine a provision's basic purpose and the result in a particular case. And where they differ, their differences are often differences of modest degree. Only a handful of constitutional issues — though an important handful — are as open in respect to language, history, and basic purpose as those that I have described. And even in respect to those issues, judges must find answers within the limits set by the Constitution's language. Moreover, history, tradition, and precedent remain helpful, even if not determinative.

Staver went on to observe, with a logic derived seemingly from his apparently deliberate misquoting:

The only thing left is the judge's own personal opinion, which is cut free from the Constitution or the statutory language.

What was Staver suggesting here? That Justice Breyer decides constitutional questions based entirely on his own personal opinion, utterly disregarding constitutional "language, history, tradition, and precedent"? Even Mat Staver has to know that this is preposterous. In fact, the substance of Justice Breyer's complete speech maintains the exact opposite of what Staver was attempting to make him say.

Interestingly, Staver's context garbling was mirrored by several of his ideological allies, the most noteworthy (and comical) being Janet Folger, who wrote, “In other words, Justice Breyer doesn't really hold the Constitution in high regard."

Can she really have been serious? I think she was — which speaks volumes for her credibility, and even more for her familiarity with constitutional law. And Folger's comment was based on exactly the same misapplied fragment of Justice Breyer's sentence that Staver excised and posted on his website. Coincidence? Not.

Janet Folger, by the by, also has a radio program that's aired by 107.7. The lying for Jesus that takes place on that show is simply astounding. I recommend it to anyone with a certain sense of humor.

A tribute to you, the readers

Enter your blog's URL.

Your morning hypocrite

There is a bumper sticker one sees occasionally spelling out the word “coexist,” using a variety of religious and other symbols. For example, the 'c' is the crescent moon of Islam, the 'x' a Star of David, and the 't' a Christian cross:



Apparently some of the deep and influential thinkers on the local political right find this plea for tolerance and ecumenicism offensive, in particular the suggestion that they are being asked to “coexist” with Muslims. God forbid.

In response, one of these clever fellows revised the bumper sticker, putting a hammer and sickle where the 'e' was, and replacing the Star of David with a Nazi Swastika, a decidedly unfortunate decision, to say the least.

Graphically it wouldn't have worked to replace the crescent moon with the swastika, which was presumably the intent, but nobody should expect intellectual coherence from the local wingnuts.

Furthermore, in addressing bearers of the original sticker, the clever fellow remarks, “Coexist With The Commies And The Nazis, You Smug Little Twerp!”

The irony, of course, is the revised sticker shows Christians coexisting with Communists and Nazis, and neither Nazi Germany nor any Latin American socialist regime were exactly what you might call nations of atheists.

But the best part of this little episode concerns the triumphalist ravings of a Milwaukee radio blatherer who, I have been told, recently delivered an extended harangue condemning the lack of civility among his political opponents.

This same blatherer, amazingly, reproduced all of the above — and more — at his official internet site, which is hosted by the largest media conglomerate in Wisconsin. And, even more amazingly, the blatherer labeled his entry, “PURE GENIUS” in 24-point bold font, and bestowed the revisor of the bumper sticker with the congratulatory adjective, “brilliant.”

I have no desire to link to any of this laughable hypocrisy, but AQM's got it all here. Très amusant. And, to be sure, pathetic.

A creationist "Senior Fellow"

As noted below, Seattle's Discovery Institute is a “think tank” from whence much of the “intelligent design theory” issues, generally in the form of political rhetoric and pronouncements grounded in an allegedly objective morality. Science? Not so much.

Now comes news (nice picture) the DI has named as a “Senior Fellow” the noted population geneticist Michael Medved. Mr. Medved's contributions to evolutionary biology are legion, not least of which are his review of Jurassic Park and his recent apologetic for American slavery, published by ClownHall.com.

As a Senior Fellow, Mr. Medved outranks such luminaries of biology as the mere Fellow Nancy Pearcey, whose scientific credentials include “graduate work at the Institute for Christian Studies” in Toronto, which corresponds roughly to authoring a scholarly paper on the behavioral psychology of leprechauns.

Apparently the DI has now discharged all pretense to credibility, and Mr. Medved's appointment to Senior Fellow serves only to confirm that the intelligent design movement truly is nothing more than “creationism in a cheap tuxedo,” a set of fallacious assertions against evolution and a dyspeptic, polemical rejection of the fact that our species is as much a part of nature as any other creature.

It is, as another of the DI's Senior Fellows acknowledged during the Dover trial, every bit as scientific as a horoscope and nothing more than a ploy to smuggle religion into the one remaining area of human endeavor where it clearly has no place.

Its advocates shouldn't be granted an inch of concession.

cdesign proponentsists

PBS's science program NOVA on Tuesday night ran a by turns edifying and irritating special on the creationist shenanigans that occurred in Dover, PA, in 2005. A couple of fundamentalist Christian knuckleheads called Bonsell and Buckingham tried to smuggle their religion into high school biology class there, an attempt that resulted in a federal bench trial and a 139-page creationist smackdown authored by John E. Jones III, a conservative Republican judge.

An unrepentant Buckingham, who apparently lied under oath at trial, is interviewed calling Judge Jones a “jackass,” and it's reported that Jones and the parents and science teachers who complained against the creationist scam artists received death threats during the proceedings. Feel the Christian love.

All because the creationists are too willfully ignorant to appreciate the elegant and ingenious manner in which the God they claim to worship went about introducing life on Earth: biological evolution.

The two-hour program, which is available for viewing online starting tomorrow, is not kind to the creationists; but neither was Judge Jones's opinion, which referenced the “breathtaking inanity” of the creationist members of the local school board and noted that

It is ironic that several of these individuals, who so staunchly and proudly touted their religious convictions in public, would time and again lie to cover their tracks and disguise the real purpose behind the [“intelligent design”] Policy.

The so-called intelligent design policy — which has been famously and accurately described as “creationism in a cheap tuxedo” — consisted of the mandated reading in biology class of a fatuous anti-evolution diatribe and the placement in the school of several dozen copies of a creationist textbook, Of Pandas and People.

The books, which Bonsell and Buckingham at one point claimed appeared out of nowhere — creatio ex nihilo, as it were — it turns out were purchased by Bonsell's father with tithes solicited by Buckingham through his church.

One of the more amusing episodes in the special concerned documents obtained by the plaintiffs during pre-trial discovery, documents that showed the evolutionary precursors of the text in Of Pandas and People. The text, which originally contained dozens of references to “creation” and “creationists,” was modified to substitute various permutations of the term “design,” ostensibly so as not to offend the long string of federal and State judicial opinions which have essentially declared creationism and “creation science” to be religious shams masquerading as science and, as such, their inclusion in public school curricula a violation of the Establishment Clause of the First Amendment.

Click to see a funny graph. (1987 is the year the U.S. Supreme Court issued its landmark Louisiana creation science [sic] decision, Edwards v. Aguillard. Incidentally, Justice Scalia's Edwards dissent contains possibly the most palpably ridiculous argument ever memorialized on the pages of the United States Reports.)

In one particularly awkward textual substitution, the expression “cdesign proponentsists” appears, an attempt to simply replace “creationists” with “design proponents.”

What makes this especially comical is the reliable demand anti-evolutionists are constantly making, which is for scientists to produce “transitional forms,” that is, creatures intermediate between, for example, land mammals and whales, dinosaurs and birds, or fish and amphibians.

Whenever such creatures are produced — and they are numerous — creationists either somehow deny their status as transitional forms or else demand additional transitional forms representative of the newly created transitional “gap.” So the comedy inheres in the status of “cdesign proponentsists” as a transitional form, hard evidence of the evolution of creationism to intelligent design (without any new data or novel argumentation).

Much of the NOVA special is devoted to reenactments of the bench trial, and especially the testimony of the star creationist witness, Michael Behe. Behe is shown engaging in the time honored creationist device of misrepresenting the work of a scientist, David DeRosier, a professor of biology at Brandeis University.

DeRosier, who has devoted considerable study to the flagellum, the part of a cell which makes it move about, made the mistake of referring to it metaphorically as “a machine.” Behe takes DeRosier's characterization literally, and uses the flagellum as the centerpiece of his “theory” that Jesus the Millwright installed the flagellum into creation fully formed. Behe further alleges that the flagellum is “irreducibly complex,” meaning that if any of its constituent proteins are removed, it's useless for any other purpose.

DeRosier himself turns up to expose Behe's buffoonery, and gives examples of “reducibly complex” flagella, that is, structurally similar yet missing constituent proteins and performing different functions. Behe declined to participate in what his colleagues at Seattle's Discovery Institute — where the cheap tuxedo is maintained — have termed a “propaganda piece.”

In another trial reenactment, a lawyer for the plaintiffs piles Behe's witness box with articles and books discussing the evolution of immune systems, literature Behe essentially claimed didn't exist. He continues to insist that it's “unsatisfactory,” or something.

Then lawyers for the Thomas More Law Center, the "Christian answer to the ACLU" who represented the defendant creationists, complain that Judge Jones overreached in his decision by declaring that intelligent design is not science, despite their specifically having asked him to rule on that very question. There's just no pleasing some people.

Judgment Day: Intelligent Design On Trial, will be viewable at this link. Trial documents and Judge Jones's opinion in Kitzmiller v. Dover Area School District are archived here.

And TalkOrigins, the internet's premiere biology clearing house, has the complete trial transcripts at this page. The cross examination (“with cheerful mercilessness”) of Michael Behe by Eric Rothschild of Pepper Hamilton is particularly entertaining.

Pitchfork waving peasants

Derrick Nunnally, one of the few regularly worthwhile reads at the Milwaukee Journal-Sentinel, cracks me up.

Commenting on a Wisconsin State Journal report of a teenage beer drinkin' party staged at a farm shed in Waunakee that resulted in a stand-off with police featuring an axe and a sledgehammer, Nunnally deadpans, “Somehow, no pitchfork is (yet) part of the accusations.”

Perhaps Mr. Nunnally spends so much time with lawyers he's inherited their sardonic irreverence. The right lawyers, that is. As a general proposition, spending too much time with lawyers can come to no good at all. Or so I'm told by the girls I go out with.

Conflicts from A to Ziegler

Here's a nifty website assembled by our friends at One Wisconsin Now, providing some background and a series of informative links pursuant to the trials and subsequent (and ongoing) tribulations of Wisconsin's newest Supreme Court Justice, Annette K. Ziegler:

Conflicts from A to Ziegler

(Fix the typos, folks!)

Ziegler, who is married to the eponymous wealth management mogul J.J., presided over cases in her previous incarnation as a Washington County Circuit Court Judge, during which she failed on numerous occasions to disclose her financial interests in the parties before her, notably the West Bend Savings Bank, on whose Board of Directors J.J. sits.

Annette Ziegler notoriously referred to her failure to disclose the relationships as the performance of a "gut check," in spite of her reputation among conservative supporters as an alleged "strict constructionist," a judicial disposition which may or may not include for the literal interpretation of State judicial ethics guidelines and related statutory provisions.

Ziegler has since proffered a certain degree of repentance and a specified number of dollars — 17 thousand of them in penalty and costs, to be exact — for violating conflict of interest rules, but isn't out of the thicket yet.

Next Monday, November 19, a public hearing will be held in West Bend in furtherance of this formal request for additional documentation. Justice Ziegler has succeeded in placing her new colleagues on the Wisconsin Supreme Court in the distinctly awkward position of potentially subjecting her to further disciplinary action.

The cynical wager, however, is she'll emerge relatively unscathed.

The limits of due process

Due process is not easy to define, although it's a concept that figures prominently in our country's constitutional scheme. Criminal defendants in particular are guaranteed due process by both the 5th and 14th Amendments to the Constitution, the former on the part of the feds and the latter the States.

Briefly, the government is empowered to deprive you of life, liberty, or property, but not without extending to you the benefits of whatever legal procedures are due. And while it's not easy to define due process, it's very easy to show examples of it.

Comes now the Wisconsin District I Court of Appeals with an extension of the benefits of process everyone can agree was due to the defendant. Arguably, well and way beyond what was due.

Anderson was convicted of two counts of third-degree sexual assault of a four-year-old girl. That assault, according to the victim's testimony, involved sodomy — in the literal sense, not in the euphemistic common law sense, which includes for activities aside from anal intercourse.

Apart from some very narrow exceptions, defendants facing sexual assault charges are not permitted to present evidence of the victim's past sexual activity. In this case, Anderson wished to present evidence that his mother had once observed the victim simulating cunnilingus on a Barbie doll.

Anderson claimed that, by not being allowed to have this evidence recorded, he was denied his own constitutional right to the presentation of an effective defense. That's correct: Anderson considered his mother's claimed observation a defense against charges he'd sodomized a four-year-old girl.

Such are the ways of the law.

In any event, the judge who presided over Anderson's trial — it was a bench trial, where the judge additionally assumes the fact finding role of the jury — discounted the credibility of Anderson's mother's testimony in favor of the victim's mother's claim that not only did the incident never take place, the child never even played with dolls.

As for the evidence that Anderson's right to due process was more than justly satisfied, the court's lengthy analysis of his purported defense is available here (.pdf; 12 pgs.).

And, of course, outside the referent legal paradigm, the notion that a four-year-old licking the crotch of a Barbie doll constitutes sexual activity in the first place is, to put it charitably, vaguely preposterous. Which is why this defendant may never claim he was not afforded due process pursuant to the court's extended treatment of what is, it seems to me, a pretty wild claim.

Accordingly, Anderson was deprived of several years' worth of liberty.

I don't read blogs

For a while I was, on occasion, looking at a few of the local self-styled “conservative” blogs. But it was a bad habit and I gave it up. My life is richer for lack of that particular component.

They are, for the most part, pointless, ridiculous, humorless — intentionally, at least — and, ultimately, annoying as hell.

It was like watching a low rent Bill O'Reilly, or some idiot televangelist (respectively, a physical impossibility and a redundancy): mildly amusing at the outset, but eventually just ... annoying as hell.

With one or two exceptions they have nothing interesting to say and as far as I'm concerned they are little more than fodder for ridicule. They never were anything else.

I appreciate that others will continue to monitor them, and continue to limn their hypocrisy, their breathtaking myopia, their selective deployment of data, and — especially — their phony self-righteous outrage.

Indeed, my stalwart associate Tim Rock provided some genuinely instructive entertainment the other day pursuant to just about exactly the foregoing criteria. The reader may follow the links here and here. Res ipsa loquitur, as they say: the thing speaks for itself.

Personally, I don't find it offensive because some xenophobic rube actually went over to a group of people conversing in Spanish at the Wal*Mart and told them to speak English or get out of the country. And I don't even find it offensive that a Milwaukee Journal-Sentinel columnist actually compared said xenophobic rube to — get this — H.L. Mencken.

In fact, for anyone who appreciates literature, or, at least, trenchant and stylish prose, that may have been the most offensive observation ever perpetrated on the internets.

But really, it's typically addlepated and nonsensical bluster and not worth any further effort. Selah.

eta: I'd be remiss not to hook up my good buddy the Brawler.

Cheese hat