Tuesday, January 10, 2012

MITT IS IT v 2.0

Here's a headline you won't see in November: "Mitt Wins!"

Romney will win the New Hampshire primary tonight. 
Ron Paul is second, with Henry Cabot Lodge, Harold Stassen and others bringing up the rear. 


In answer to a statement in the comments on the previous post that  no juvenile in the US had ever been executed for a crime, we did a quick search and were astounded to see that NINE...count em...NINE juveniles were executed from 2000 to 2005 when the supreme court (Motto: "Better late than never") put an end to the madness.  But up until 2005 the US proudly stood with Iran, North Korea and China as the only countries who taught those rascally kids a lesson they would never forget. 

Keep your eyes open for our new guest blogger who, like El Capitan, has been awarded unfettered blogging privileges. Membership has its rewards. 


There was some chatter across the legal blogs about Mitt Romney indirectly attacking the decision in Griswold v. Connecticut which is credited with establishing  the "right to privacy." Griswold was about the ability to buy condoms. But in a much larger sense Griswold more than any other case highlights the problems with constitutional analysis and illustrates why objectivism as applied to constitutional law is an excellent lens. 

Justice Douglas found a right to privacy in emanations from a  "penumbra"  from the bill of rights. A penumbra is  a region where some or all of the light is obscured. When applied to constitutional analysis, finding a right emanating from  a penumbra is another way of a judge saying "the facts of this case disturb me enough to invent something to fix the result and skewer the decision to a result that I personally want regardless of what the law is." 

There is no right to privacy in the constitution. If you ask us personally if there should be, the answer would be an unequivocal "yes!". And we approve of the "result" in Griswold. But the the method to reach that result is dangerous. 

No other right has ever been found lurking in the elusive penumbra since Justice Douglas's remarkable discovery. But what if Thomas and Roberts and Scalia and Alito can convince one of their brethren that they have "discovered" the right of a fetus not to be aborted lurking within a penumbra of the constitution?  How about if, after careful scrutiny, they found that right just out of common eyesight and lurking within the penumbra of the right to "life, liberty and the pursuit of happiness"?  How wonderful would the analysis of Griswold look to those who otherwise celebrate the discovery of the right to privacy? 

Our point is that when you reach the upper most echelon of constitutional analysis, the method of arriving at the result (the philosophy if you will) is more important than the result itself.

See You In Court. 


Anonymous said...

What did those juveniles do? I have no problem with society executing a 17 year old under the right facts.

Anonymous said...

Rump - you know as well as all of us that many of today's juvenile offenders are more dangerous, heartless, and just plain evil than their adult counterparts.

What punishment do you recommend for violent juveniles who are statistically likely to reoffend?

D.S. said...


Broward Cops shoot n kill 2 on Tuesday. One a shoplifter from Aventura in Hallandale; the other selling guns to U/C BSO in Pompano.
Sorry no pithy comments ...

D.S. said...

watch out:

Top IRS criminal investigator from Miami dies after workout.


Read more here: http://www.miamiherald.com/2012/01/10/2583176/top-irs-criminal-investigator.html#storylink=cpy

Anonymous said...

Did you close out those Linkedin puts? How did you do? The stock went in your direction, what about the timing?

Rumpole said...

Of course the stock fell. $$$$$$$$&

The Pundit said...

Don't be so sure about "Mitt wins" not being a headline in November. Right now the odds slightly favor Obama, but remember that nearly 50 years ago Robert Kennedy said that six months was a lifetime in politics. With the internet and instant news cycles, I now cut that to one month. The economy is slowly getting better, but unemployment is still very high. A lot can happen in the next 10 months.

The Pundit said...

Of course, two points to ponder:

1. The Republican primary is probably going to turn into a bloodbath, which will harm whoever the eventual nominee is, probably Romney. Unless Santorum, Perry and Gingrich all drop out or are forced out soon--very unlikely--it is going to get ugly.

2. If Ron Paul launches a third-party candidacy, which he may well do, Obama is a shoo-in for re-election.

Paladin51 said...

Okay, I'll bite on your analysis of "penumbras." I don't agree that a right to privacy does not exist, though indirectly, in the constitution. The 1st, 4th, 5th, and 9th amendments all indicate that a citizen has rights that belong to him and cannot be taken away by government interference; i.e. a right to privacy. It seems to me the Constitution allows one to do anything that is reasonable and not harmful to others, especially in his own bedroom. What reasonable is is to be determined by the courts, as it was in Griswold. So long as the courts agree that the government's limit on privacy is reasonable, then that part of the right does not exist; i.e. the right to smoke marijuna or possess child pornography. The courts are the last resort to control an unreasonable government. We try to place people on the courts whe themselves can distinguish injustice and unreasonableness on the part of the government. Justice Douglas did this, rightly so, in Griswold, just as the whole Court did in Brown v. Board of Education. Your example of finding the right of a fetus not to be aborted, I believe is far-fetched and not likely, though, if corporations can be declared citizens, then fetuses probably can too.

Rumpole said...

First read the dissents in Griswold. Second, you have more faith on gov than I do. Could you ever imagine the gov telling you that you can't eat the food you grow? They did and the supreme court upheld it in Wikard v Filburn (may not have spelled it right). My point is that if a Justice that you trust can find a right in a penumbra then don't complain when Alito finds a government power in the same penumbra.

Anonymous said...

rump: it never ceases to amaze me that you have the uncanny ability to look up the definitions of complex words and then use them. man, if I ever need a dui lawyer, you are da man I would call.

Anonymous said...

I had my penumbra surgically removed years ago, and I feel much better.

Rumpole said...

149. My vocabulary far exceeds your attempt at humor. While defending duis is an honourable profession I would not accept your case. I suggest you increase your consumption of liquor and when you do, try perambulation.

Anonymous said...

Even Rubio as a running mate will not secure Mitt the win in 2012. It will be Obama.

Anonymous said...


Anonymous said...

There is an argument that is being put forth that sentencing juveniles to life is cruel and unusual punishment. I heard Manny Alvarez presented this argument on the Michael Hernandez case several weeks ago and it seems to also be an argument that is pending before SCOTUS. Of course the trial court denied the Hernandez motion, but what will the 3rd DCA do?

Anonymous said...

I hope you are wrong. Obama wants to raise my taxes.

Barrister of Ballentrae said...

After Hialeah man’s story falls apart, he faces attempted-murder, hate-crime charges
By Diana Moskovitz The Miami Herald
Luis Gonzalez crashed his pickup after he was shot, he said, by robbers. But they weren’t robbers, and acted in self-defense when he tried to run them down, police said

Read more here: http://www.miamiherald.com/2012/01/11/2584850/shot-man-who-crashed-into-funeral.html#storylink=cpy

Anonymous said...

Hmmmmm. Nine juveniles were executed in five years. Doesn't sound like we're indiscriminately executing juveniles to me.

As for giving juvenile offenders life sentences.........many of them deserve it.

The reality is that a person doesn't magically transform when they age from 17 years and 363 days to 18 years old. There should be no problem with courts using their discretion appropriately.


Fake Fake Tannebaum said...

People LOVE the sarcastic way I criticise them. That's why I get invited to speak at VERY IMPORTANT groups like the Manalapan Bar Assn.

I post on my Twitter, Linkedin, Facebook and YouTube accounts while I wait for my introduction. My next talk will be about why social media doesn't work for lawyers. I get all my business through word of mouth referrals from Starbucks barristas.

Anonymous said...

Thursday, 11:33 a.m.
The SCOTUS cases addressing the constitutionality of a life sentence for a juvenile convicted of homicide are Miller v. Alabama, No. 10-9646, and Jackson v. Hobbs, No. 10-9647. They will both be argued on March 20th. Decisions by late June.

The initial brief in Michael Hernandez's case was just filed on December 29th, according to the DCA docket. The U.S. Supreme Court will be issuing its decisions before the Third DCA, then. The Supreme Court cases both involve juveniles who were 14 when they killed, just like Hernandez, so those decisions should control what the Third does with Hernandez.

Anonymous said...

Gotta to to the state and county web sites and see what the judicial candidates raised.

Some found real money. Some have done nothing to campaign.

I have to wonder why John Rodriquez wants to replace Teretha Lundy Thomas. She's wonderful and well respected.

Anonymous said...

Oh joy. As if Rumpy wasn't old and out of touch, we now have a guest blogger so old he fancies himself as a reincarnated Errol Flynn or has actually read Robert Louis Stevenson. Can't wait for the out of touch posts! What happened to Angry Gurl?

Anonymous said...

Thursday, January 12, 2012 1:31:00 PM

I'm not for life or death of anyone under the age of 21 years.

I am for legislation that holds parents of minors who commit vicious crimes accountable under criminal law, let's say for every murder your child does the parent faces one year in prison minimum mandatory sentence.

How many parent's, Guardians will start to give a F&^% when faced with actual criminal charges for the actions of there children?

Before you get those panties in a bunch, I am speaking only of violent crimes, plus prosecutors already have discretion to prosecute and will surely know when to apply such a law when needed.

CAPTAIN said...

to 2:44 pm:

Well, at least you have one sane blogger between the three of us.


I always appreciate your take on the issues; while they may be very different from the majority of the posts, they bring a different perspective to the discussion.

Having said that, I have to disagree with your latest post to a degree. While the types of crimes these juveniles are charged with, the cruelness of them. the violence of them, the heinousness of them, all call out for life sentences - for those types of crimes and those types of facts - I am still of the opinion that, based on all the literature we now have about the development of the brain, you can distinguish between juveniles and adults when it comes to the sentencing portion of the equation.

Life sentences are, simply put, way too harsh for a teenager, IMHO.

Cap Out .......

Master Chief said...

I still say the "Escape from New York" solution to encarceration would put an end to all of this sentencing and death penalty argument.

Add in a "Running Man" like appeal process to win your freedom, and the fans of due process should be happy.

Also a big fan of "Mad Max", Two Men Enter, One Man Leaves method of adjudicating civil disputes.

Hollywood's post apocalyptical versions of justice may not be so outlandish.

P.S. - I want blogging privileges!

Anonymous said...

I am putting all my money on Dewey winning So.Carolina on Tuesday.

Anonymous said...

Cap, just out of curiousity, let's suppose the law was changed.

Wouldn't you have an equal protection problem with the fact that an 18 year old could get life for an armed robbery while a 17 year and 363 day old who committed an incredibly violent and heinous crime (ie. raping and murdering a child) couldn't?

My point really is that I don't believe in stripping the courts of their ability to dispense justice on something as arbitrary as age.

I grant you that the brain keeps developing until the mid-20's, but am not prepared to say that someone who commits a horrific crime is going to become safe at some point in the future (sitting in prison with a bunch of rapists and murderers is not exactly the best way to develop values). While the possibility does, of course, exist that a percentage of these offenders can be rehabiliated, I'm not about to risk my family and friend's lives on it.


PS----before anyone gets to crazy here, remember, I'm only talking about life for the most violent and heinous crimes.

Anonymous said...

I tend to agree with btdt on this one.
While I know we use age as a magic day for certain things, ie driver license, voting, drinking, I think there shouldn't be such a fine line when it comes to the justice system.

I've had a juvi defendant who was only a few days away from 18 who committed with an 'adult' a few days after 18 and they received very disproportionate penalties.

The two were not far apart mentally. In fact the 17 yr old was way more criminal minded and deserved a lot worse than the 18 yr old who sort of reminded me of a kid of about 14 mentally.

I also don't know what the alternatives are for someone say 14 who commits a heinous crime.
Are they beyond hope? Was it just that they didn't know any better?

Does it have to be a black and white line?

Anonymous said...

Senate panel approves school prayer bill

By Kathleen McGrory

File under ,They Dont get it:
Under a pair of bills being considered in Tallahassee, high-school students could lead prayers in public schools.

I grew up w/ prayer in Schools. I hated it and always felt OUTSIDE as a Jew w/ Christan prayers at Greynolds Park Elementary School [ in N. Dade. Siplin ( the Hat Guy) an Attorney should KNOW better.

Read more here: http://www.miamiherald.com/2012/01/12/2586823/senate-panel-approves-school-prayer.html#storylink=cpy

Barrister of Ballentrae said...

Prayers for Our Lady of Cuba

Mercedes Benz , THE Staff car of the Nazi's, Insults Freedom loving people and pushes a dagger in the heart of All Cubans

by using a picture of the murderer CHE to sell its cars.

Then, Miami's ArchBishop returns from our beloved island prison to say he will lead a pilgrimage to Cuba. The Assassin Fidel will be counting his Dollars from the tourism.

Luckily , Newt Gingrich is coming to the ultimate shrine of Cuban liberty today (Versailles, THE WORLD'S MOST FAMOUS CUBAN RESTAURANT ) , though I suspect a fund raiser latter.

Viva Cuba Libre

The Barrister

Master Chief said...

Wait till the kid wants to lead a prayer 5 times a day facing Mecca.

We will see how much people support prayer in school.

Anonymous said...


As bad as it is for Mercedes to use Che Guevera as part of an advertising campaign, it has done a lot worse. Mercedes, along with many existing German corporations, were allowed to use slave labor to keep operations (and profits) ongoing during WWII. I guess this was the Nazi version of "too big to fail." To this day, I will not buy anything made by Krups, because this company was the main German arms manufacturer during not only WWII but most of the previous German forays into modern warfare. I have a strong German background, and the checkered history of these German corporations is one of the things that bothers me the most about my heritage.

Anonymous said...

And how many Cubans in Miami drive Mercedes? So much drama, so little interest...zzz