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Archive for November 16th, 2016

Dan Kennedy to Head Administrative Branch for FBI LA Office

fbi logo large

By Allan Lengel
ticklethewire.com

Danny Kennedy, who most recently served as section chief of the Intelligence Branch for the International Operations Division at FBI headquarters, has been named special agent in charge of the Administrative Branch for the Los Angeles Field Office.

Kennedy joined the FBI in 1997 and began his career in the Memphis Division, Nashville Resident Agency, where he investigated organized crime, drug and criminal enterprises, and counterterrorism matters, a press release said.

During the course of his career, Kennedy has held leadership positions in the Dallas Division, the Directorate of Intelligence, the Counterterrorism Division and the Los Angeles Field Office.

He’ll assume his new role in mid-December.

The Effect of Donald Trump’s Supreme Court Picks on Criminal Law Cases

supreme_court_us_2010

By Ross Parker
ticklethewire.com

One out of five voters said that the Supreme Court was the most important issue of the Presidential campaign. They voted overwhelmingly for Donald Trump. The President-elect has published two lists of about 20 possibilities for his Supreme Court appointees.

“Appointees” plural since there is one vacancy and three of the eight Justices are over or near 80 years old. Two are considered in the “liberal” wing (Ginsburg, Breyer) and one is a swing vote who sometimes votes with that group (Kennedy).

Since the pool of Trump picks are characterized as “conservative” or “libertarian,” the speculation by the pundits is that the effect of the appointments will be immediate and a strong re-direction to the right. Not that many of us put much faith in the predictions of the pundits and pollsters after the election. But in this case they are probably right. At least as to the hot-button issues like abortion, immigration, climate change, LGBTQ, gun rights, and affirmative action.

But what about cases involving criminal and law enforcement issues? This requires an assessment of how the current 8 Justices on these cases have voted.

In the 2015-2016 term, the Court handed down opinions in 28 cases involving these issues out of 81total cases. Categorizing each Justice’s vote as Pro-Government or Pro-Defendant results in the following order, from highest percentage of Pro-Government votes to the lowest:

Alito————79%

Thomas——–61%

Kennedy——-61%

Breyer———-57%

Roberts——–57%

Kagan———-54%

Ginsburg——50%

Sotomayor—-36%

Another interesting survey counted the percentage of time that each Justice voted with the majority in criminal cases, as opposed to voting with the dissent, or filing a concurrence with an entirely different rationale than the majority. That list from highest adherence to the majority to the lowest was as follows:

Kennedy——-96%

Roberts——–93%

Kagan———-89%

Ginsburg——86%

Breyer———86%

Alito———–71%

Sotomayor—71%

Thomas——-54%

Before the analyses, the caveats. These 28 cases were from a single term, not the entire history of a Justice’s votes. Some involved just following the Justice’s interpretation of precedent, as opposed to how he or she would have voted if not bound by precedent. Some of the cases were very complex, and there was some subjectivity in a few cases in deciding which box to put each of the votes in. But there is something to be learned from the exercise even with these limitations.

Looking at the Pro-Government listing, the two Justices at the top (Alito and Thomas) are considered to be the most “conservative” on the bench. The two on the bottom are considered to be in the “liberal” wing. But the four in the middle do not follow these labels. The list proceeds: swing vote (Kennedy), liberal (Breyer), conservative (Roberts), liberal (Kagan). Thus in criminal cases at least, the label does not determine the voting pattern for most Justices.

This conclusion is made even more apparent by a look at individual criminal cases even at the top and bottom of this ranking. For example Justice Thomas, rightly considered the dissenter on the bench, either dissented or concurred in the defendant’s favor in six cases, about a quarter of the criminal docket. This may well be because of his libertarian views on cases like those involving Second Amendment right to bear arms or the federal Hobbs Act, which he may perceive to invade states rights. On the other end of the list, Justices Sotomayor and Ginsburg each dissented in favor of the Government in two cases.

On a great many cases, it was difficult to predict how a Justice would vote on criminal cases. Voting groups on each side sometimes involved surprising voting buddies. On the great majority of cases, reading the opinions left the conclusion that the Justices more often voted their views on the applicable law rather than a particular ideology.

Also the overall Government win percentage in criminal cases is 57% to 43% for the defendants. Not too shabby for the guys and gals wearing the white hats. Moreover, in 77% of the time the Justices agree with the opinion of the Court. So the present group has not been a hotbed of rancorous disagreement.

These numbers can be parsed and speculated about in other ways. But back to the original question—how will Trump appointees affect the Court’s criminal and law enforcement-related cases? For the first appointment, to replace Justice Scalia, the answer is probably not much. Justice Scalia regularly, but not always, voted for the government in these cases. And as shown above, most cases are not decided by the ideological label put on each Justice by the media.

The second appointee, and there will be another one for President Trump, will have a greater impact, particularly in categories like abortion, affirmative action, gun rights, business regulation, gay rights, campaign spending, and racial discrimination. However, a Justice’s views can change on the bench and can greatly disappoint the appointing President, like Chief Justice Warren, Justice White, and Justice Souter, to name a few.

In criminal cases, the effect of a second “conservative” like those mentioned by the President-elect will not be as great as these categories, but it will probably move the dial for some future columnist’s analysis toward the Government’s benefit. A more law and order bench, if you will. Justice Brennan, if he stays on the bench, would not be the swing vote. The Chief Justice may well get that label.

One category in criminal cases where such a development may be significant is death penalty cases, where the Court appears to have been sensing the population’s growing doubts about the efficacy and cost effectiveness of the ultimate penalty. Even the few states regularly employing the death penalty seem to be increasingly ambivalent. The recent trend seems to be to decide these cases in ways that lessen the prospect of execution. But that could change with two or more new Justices.

Finally there is, depending on your perspective, another good development in President-elect Trump’s plans. We will no longer be judged by the eastern elite from Harvard and Yale, raised on the coasts, especially New York. The Trump list comes from all over the country and from non-Ivy League law schools, which is good news for those of us who live in the wilderness of “fly over” states and for the lawyers who went to Midwest and southern law schools. Also good news for a more diverse and representative point of view on the highest court in the land.

Parker: The Effect of Donald Trump’s Supreme Court Picks on Criminal Law Cases

Ross Parker was chief of the criminal division in the U.S. Attorney’s Office in Detroit for 8 years and worked as an AUSA for 28 in that office.

supreme_court_us_2010

By Ross Parker
ticklethewire.com

One out of five voters said that the Supreme Court was the most important issue of the Presidential campaign. They voted overwhelmingly for Donald Trump. The President-elect has published two lists of about 20 possibilities for his Supreme Court appointees.

“Appointees” plural since there is one vacancy and three of the eight Justices are over or near 80 years old. Two are considered in the “liberal” wing (Ginsburg, Breyer) and one is a swing vote who sometimes votes with that group (Kennedy).

Since the pool of Trump picks are characterized as “conservative” or “libertarian,” the speculation by the pundits is that the effect of the appointments will be immediate and a strong re-direction to the right. Not that many of us put much faith in the predictions of the pundits and pollsters after the election. But in this case they are probably right. At least as to the hot-button issues like abortion, immigration, climate change, LGBTQ, gun rights, and affirmative action.

But what about cases involving criminal and law enforcement issues? This requires an assessment of how the current 8 Justices on these cases have voted.

In the 2015-2016 term, the Court handed down opinions in 28 cases involving these issues out of 81total cases. Categorizing each Justice’s vote as Pro-Government or Pro-Defendant results in the following order, from highest percentage of Pro-Government votes to the lowest:

Alito————79%

Thomas——–61%

Kennedy——-61%

Breyer———-57%

Roberts——–57%

Kagan———-54%

Ginsburg——50%

Sotomayor—-36%

Another interesting survey counted the percentage of time that each Justice voted with the majority in criminal cases, as opposed to voting with the dissent, or filing a concurrence with an entirely different rationale than the majority. That list from highest adherence to the majority to the lowest was as follows:

Kennedy——-96%

Roberts——–93%

Kagan———-89%

Ginsburg——86%

Breyer———86%

Alito———–71%

Sotomayor—71%

Thomas——-54%

Before the analyses, the caveats. These 28 cases were from a single term, not the entire history of a Justice’s votes. Some involved just following the Justice’s interpretation of precedent, as opposed to how he or she would have voted if not bound by precedent. Some of the cases were very complex, and there was some subjectivity in a few cases in deciding which box to put each of the votes in. But there is something to be learned from the exercise even with these limitations.

Ross Parker

Ross Parker

Looking at the Pro-Government listing, the two Justices at the top (Alito and Thomas) are considered to be the most “conservative” on the bench. The two on the bottom are considered to be in the “liberal” wing. But the four in the middle do not follow these labels. The list proceeds: swing vote (Kennedy), liberal (Breyer), conservative (Roberts), liberal (Kagan). Thus in criminal cases at least, the label does not determine the voting pattern for most Justices.

This conclusion is made even more apparent by a look at individual criminal cases even at the top and bottom of this ranking. For example Justice Thomas, rightly considered the dissenter on the bench, either dissented or concurred in the defendant’s favor in six cases, about a quarter of the criminal docket. This may well be because of his libertarian views on cases like those involving Second Amendment right to bear arms or the federal Hobbs Act, which he may perceive to invade states rights. On the other end of the list, Justices Sotomayor and Ginsburg each dissented in favor of the Government in two cases.

On a great many cases, it was difficult to predict how a Justice would vote on criminal cases. Voting groups on each side sometimes involved surprising voting buddies. On the great majority of cases, reading the opinions left the conclusion that the Justices more often voted their views on the applicable law rather than a particular ideology.

Read more »

Judge Orders FBI, CIA, NSA to Disclose Spying on Occupy Protesters

fbigunbadgeBy Steve Neavling
ticklethewire.com

A federal judge has ordered the FBI, CIA and NSA to disclose any evidence that they spied on Occupy Philly protesters.

U.S. District Judge Berle Schiller gave the agencies 60 days to comply with the order, Al Jazeera reports. 

Civil rights activists want to know whether the agencies spied on protesters who camped outside Philadelphia City Hall for seven weeks in 2011.

“The government should not be investigating its citizens simply because they’ve raised their voices in dissent, whether it’s against government or corporate policy,” civil rights lawyer Paul Hetznecker said Tuesday.

The right-to-know case follows the revelation that the FBI was monitoring Occupy Wall Street rallies in New York and other cities.

Buffalo News: FBI Director James Comey ‘Needs to go, Now’

FBI Director James Comey

FBI Director James Comey

By Editorial Board
The Buffalo News

James B. Comey needs to go, now. With the FBI director’s carelessness regarding the matter of Hillary Clinton’s emails and his pointless late-campaign intrusion into the election, Comey has rendered himself toxic to the cause of justice. He has been undone by his own bad judgment and should step aside in favor of new leadership.

The problem isn’t that the FBI, under Comey’s leadership, investigated Hillary Clinton’s use of a private email server. It was an appropriate, even necessary, undertaking. But if he wasn’t intending to influence the course of this month’s presidential election, his hamfisted handling of the investigation gave it that appearance. That is an ominous possibility given the authority of the nation’s top law enforcement agency.

With that, Comey is used up. Even if his missteps were honest or inadvertent, he has lost the credibility necessary for administering a law enforcement agency that must, at all costs, be apolitical. It’s not J. Edgar Hoover’s FBI anymore.

Among Comey’s most grievous violations were the way he cleared Clinton of wrongdoing in the email case in July and his decision to go public with a renewed investigation only days before the election. Both violated long-established standards.

Typically, law enforcement agencies never acknowledge the existence of a preliminary investigation, let alone its conclusion. This one was a legitimate exception to that rule and, for that reason, Comey appropriately revealed that it had ended and that Clinton would not be charged with any crime.

But he went beyond that, making inflammatory observations about her that, while welcomed by Clinton’s adversaries, were inappropriate to a law enforcement agency. What was needed was his conclusion, without the personal observations about her use of a private email server. That was political.

To read more click here. http://buffalonews.com/2016/11/15/editorial-fbi-director-exercised-terrible-judgment-intervening-presidential-campaign/

Quick-Acting Border Patrol Agent Helps Save Life of 77-Year-Old Neighbor

border patrolBy Steve Neavling
ticklethewire.com

A quick-acting Border Patrol agent and his daughter helped save the life of a 77-year-old woman who had a heart attack.

The woman collapsed on a sidewalk outside of the home of Agent Robert Hughes, of the Douglas Border Patrol Station, Tucson News Now reports. 

Hughes performed CPR on the woman, and soon after, his daughter, Sydney Sandoval assisted her father. She is a certified EMT.

The elderly woman, who had been walking her dog when she collapsed, survived because of the agent’s and his daughter’s actions, according to the Sierra Vista Police Department.

“This act of heroism is an example of the kindness and compassion that Border Patrol agents embody within our communities,” said Tucson Sector’s Chief Border Patrol Agent Paul Beeson.

Judge: Conditions at Border Patrol Detention Centers Violate Civil Rights

courtroomBy Steve Neavling
ticklethewire.com

A federal judge plans to order Border Patrol to improve sleeping conditions at detention centers in Arizona, saying the detainees’ civil rights are being violated.

U.S. District Court Judge David C. Buru, who is presiding over a lawsuit filed on behalf of three former detainees, said the conditions must be improved, Tucson.com reports.

“I think the deprivation of sleep, at the very least, in this case is a violation of the civil rights of a civil detainee and that needs to be fixed,” Bury said at a hearing in Tucson on Tuesday.

Bury’s plan to grant preliminary relief is not a formal order, but he said he plans to work with both sides to work out a solution.

While acknowledging “the Border Patrol has a really tough job,” Bury said it’s still no excuse for inhumane conditions.

“The complexity of government operations cannot trump civil rights, neither can budgetary constraints,” the judge said.

An attorney for the detainees said they are constantly interrupted while trying to sleep because agents are constantly processing new detainees.

FBI Director Comey’s Job Hangs in Balance As Trump Team Struggles with Appointments

FBI Director James Comey

FBI Director James Comey

By Steve Neavling
ticklethewire.com

FBI Director James Comey has come under fire from Democrats and Republicans for his handling of the Hillary Clinton investigation.

But his chances of keeping his job likely increased after Donald Trump’s victory, Bloomberg reports.

“The way the e-mail investigation played out, he’s got both Republicans and Democrats mad at him and suspicious of his motives,” said Stewart Baker, a former general counsel at the National Security Agency.

Former and current national security officials said Comey will have a chance to talk one-on-one with Trump in an effort to continue serving his 10-year term.

And luckily for Comey, Trump’s transition team is struggling to make key cabinet and security post appointments.

On Sunday, Trump said he hasn’t decided on Comey’s fate yet.

“I would like to talk to him before I’d answer a question like that,” Trump said. “He may have had very good reasons for doing what he did.”

Other Stories of Interest