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Monday, May 10, 2021

DON'T BE TOO DOWN

 Good Monday to you, Let's see....At least nine mass shootings this weekend. Second Amendment baby! How come none of these gun nuts ever show up and shoot the mass shooter? 

India is being overwhelmed with Covid. 300-400 thousand people getting infected every day. But ....you know...it's just like a cold right? No need for masks, or vaccines. Stop over reacting! 

Hmmm is there any good news? 

Wait! Just when you think all is lost, Judge Hirsch sends out a Constitutional Calendar missive and saves the blog and the day!

All rise for the CC...

Justice Brandeis’s concurrence in Ashwander v. TVA, 297 U.S. 288, 341 et. seq. (1936) teaches a lesson that cannot be repeated too often: Courts are not to adjudicate constitutional questions if the actual cases before them can be resolved on sub-constitutional bases, such as statutory or common-law grounds.  The temptation to ignore this lesson – to address constitutional questions first, rather than last – is one to which American judges and lawyers too often succumb.  On May 10, 1952, the prestigious British publication The Economist observed, “[A]t the first sound of a new argument over the United States Constitution and its interpretation the hearts of Americans leap with a fearful joy.  The blood stirs powerfully in their veins and a new lustre brightens their eyes. Like King Harry’s men before Harfleur, they stand like greyhounds in the slips, straining upon the start.” 

We read some more appellate opinions this weekend. When are we going to start talking about doing away with the contemporaneous objection rule? "The defendant was convicted and sentenced to life in prison. When the state compared him to Hitler in closing arguments there was no objection. It is clear the jury did not really think the defendant was Hitler and the error does not rise to fundamental error. We take this opportunity to remind the prosecutor that as much as possible such arguments should be avoided in the future. Comparing defendants to Hitler, Stalin, Bill Cosby. Idi Amin, Saddam Hussein, and Elon Musk serves no purpose in our system of justice. Finding the error was not fundamental we affirm on all counts, wish the defendant well and hope that he can take comfort in our belief the trial was not fair, we all personally feel bad for him, but unless his attorney objects there is nothing we can do. Good luck in prison living without hope. PCA." 


1 comment:

Anonymous said...

Elon Musk!....one of these is not like the others...