THE GOTCHA GENERATION

I confess that I have never seen the TV program To Catch a Predator, but I have seen the
promotions for it. I cannot understand why anyone would want to see these pathetic people humiliated and embarrassed week after week. I suppose the show can be justified on the basis that it provides a warning and serves some deterrent purpose, but it is just as likely to make the predators more cautious, assuming any of them actually watch the program. Finding them and arresting them serves the public good, but televising the moment mystifies me. Joy in the humiliation of others seems like a fairly lame format to justify a TV show (although I suppose American Idol does it for a while).

Which brings me to the case of Senator Larry Craig. First let me concede the irrefutable: yes, he pleaded guilty to a crime, albeit disorderly conduct. Yes, he is a hypocrite, as are all of his friends and colleagues who failed to come to his aid. It is quite ironic that it may be his repressive, anti-gay policies and those of his colleagues which may have created the need to seek gay sex in public bathrooms rather than out in the open. Yes, the police officer was doing his job, and it was not entrapment. Yes, prominent persons should not receive preferential treatment. But, should tapping one's foot and waving one's hand in an effort to solicit consenting sex warrant the death penalty?

There is very little about the Senator's voting record with which I agree. His hypocrisy offends me much more than his conduct. But I am certain that elected officials have been caught for other disorderly conduct offenses and sent home with a warning by the police officer. The solicitation of sex with a prostitute does not seem to bring ethics charges or demands for resignation from public office. His conduct certainly had nothing to do with the performance of his official duties. Let's face it: it's the "gay thing".

Would not a stern warning have sufficed rather than the destruction of an entire lifetime of public service, humiliation for him and his family and his inevitable resignation? Yes, the Senator was stupid and he brought this upon himself, but should we not have some sympathy and compassion for a person in such a high position who feels compelled to seek sex in an airport's men's room? Does the punishment fit the crime; or is this just another TV show celebrating humiliation. Gotcha!

CUT AND RUN OR STAY AND DIE?

Neither is a fair characterization of the alternatives. But the Bush administration mocks the Democrats for either their failure to have any plan regarding Iraq or their proposals for troop withdrawals. The administration (always better at devising advertising slogans rather than actually governing) characterizes the Democratic plan as "Cut and Run", and now points to the consequences of leaving Vietnam, citing the killings that followed our withdrawal.

No one can quarrel with the noble goal that we should attempt to combat the senseless killings of mass numbers of civilians wherever it should occur. But in deciding when and where to intervene, as part of the equation we must calculate how much we are willing to sacrifice. What would have been the cost in lives and wounded if we had remained in Vietnam? No one asks this President: How many American deaths, disabilities and dollars are you willing to expend in this elusive goal of bringing peace and democracy to Iraq?

The administration's position conjures up this analogy for me: Arsonists (the Administration) start fire to a building, and residents and firefighters are killed. When it appears that the building is about to collapse causing further deaths to both groups, the Arsonists (the Administration) who caused the fire in the first place, take their megaphones to the streets and shout at the spectators (the Democrats): "What are you going to do about this?"

Because of the quagmire that this President has created, there may be no adequate solution, but when the Democrats respond with a variety of proposals, only this Administration could say with a straight face-----that proposals to bring the troops home to safety put them in harm's way, while keeping them in Iraq indefinitely---does not!

YOUR MONEY OR YOUR RIGHTS?

Adam Liptak reports in the N.Y. Times (7/16/07) that welfare recipients and applicants in San Diego are subject to unannounced visits and searches to assure that they are not defrauding the government. In other words, those "who want public benefits must give up their privacy", and apparently that means their rights under the Fourth Amendment regarding searches and seizures. Wow, what a great idea!

If that is the law and I were a law enforcement officer, I would be so ecstatic I wouldn't know where to begin. First, I think I would be tempted to bust into the offices of the defense contractors to see what evidence I could find of over-billing. But wait, maybe barge into those oil companies with their large subsidies to see whether or not there is any evidence of price fixing. But hold on, what about the cigarette companies and their tobacco subsidies and the possibility of gazing at those scientific reports they have and comparing them with what they have been saying for years to the public about their products.

The welfare investigators who happen to come across evidence of other crimes pass that information on to the appropriate law enforcement agency. So if any of the above corporate searches don't hit their original targets, maybe we can still find some tax evasion or bribes just by rummaging through their books in the same way the welfare investigators rummage through drawers looking for men's underwear.

However, the corporations receiving tax benefits or subsidies from the government should have the same opt-out options as the welfare recipients. Mr. Liptak points out that "the majority in a divided three-judge panel indicated "that people are free to opt out - by giving up their welfare benefits." In other words, welfare recipients (as in one of those game shows) can keep the money and give up their Fourth Amendment rights, or keep the rights and starve --both themselves and their families. Sounds fair to me.

So, corporations should have the same privilege. They can keep their subsidies, their tax breaks, their government contracts as long as they give up their Fourth Amendment rights, or they can retain those rights and give up the benefits. Right!

The purpose of these unannounced searches is laudable---to root out welfare fraud. But welfare fraud is a crime, and merely because it is "welfare" should not make the Bill of Rights inapplicable. When the poverty line was established it was not meant to provide that those who fall below it surrender their constitutional rights.

THE RESTROOM ATTENDANTS' LOYALTY OATH

In view of the current revelations regarding the administration's suppression and control of the Surgeon General, it is apparent that no branch of the government has escaped politicization. I envision the government's restroom attendants lined up every morning at attention, mops on their shoulders, pails at their sides and hands on their hearts reciting the "Bushie" loyalty pledge.

In respect to both the U.S. Attorneys and the Surgeon General, the President's press secretary has said that the President should be able to carry out his own policies. No one can quarrel with that statement, except when those policies further partisan interests rather than the public interest. The administration can properly establish priorities for United States Attorneys in focusing on particular types of criminal activities, but it cannot and should not seek to use the criminal justice system to accomplish political gains or to protect political allies.

It can encourage and even direct the Surgeon General to focus on particular scientific and medical areas, but it cannot and should not attempt to conceal reports and information which would serve the public interest. The White House has chosen to deny the accusations of Dr. Carmona that he was directed not to speak about stem cell research, sex education and prison health care and that a report on the dangers of second hand smoke was "watered down" and delayed. (NYTimes 7/11/07) But denials by this administration of any wrongdoing or falsity are so automatic that it is fair to treat them simply as admissions. One only need ask what possible motive could Dr. Carmona have for fabricating all of these stories?

But nothing better symbolizes the priorities of the current administration than its efforts to discourage support for the Special Olympics solely because of its historic ties to the dreaded Kennedy clan. Dr. Carmona was asked by a senior official: "Why would you want to help those people?" By those people, he, of course, meant the Kennedys, but in turn, the administration was willing to forgo support of an event and organization that gives encouragement and aid to thousands of special children. But for an administration that would rather see people die than allow stem cell research, it should come as no surprise in a choice between hurting a cause sponsored by the Kennedys or helping that worthy cause because of the good that it does, that they would pick the former over the latter. Politics has infected every corner of this administration, and apparently even the Surgeon General, the country's chief doctor, has suffered from its effects.

SEX v. NATIONAL SECURITY

Everything that could possibly be said about the commutation of "Scooter" Libby's sentence has been said. Whether or not one accepts the reasons for the President's actions, it is the hypocrisy of those who support it and also sought the impeachment of President Clinton that I find so irksome. President Clinton lied in a civil proceeding in an effort to conceal a sexual relationship. True, his conduct and its concealment demeaned the presidency, but it had no relationship whatsoever to the conduct of his office or his administration. Nonetheless, those seeking impeachment were intent upon causing the President of the United States to be removed from office, humiliated and embarrassed, and the nation disgraced in the process.

Compare that with the subject matter of Mr. Libby's conduct in a criminal investigation and what it was he was trying to conceal. The administration sought to discredit a critic of its justification for the war against Iraq; was willing to use secret information to do so, and as a result outed a CIA agent and endangered other operatives as well as our national security. The cover-up involved an outrageous abuse of power to silence opposition to the war and exposed a willingness to take any action to accomplish it, even if illegal.

The crimes of perjury and obstruction of justice are serious and in these two cases may be the same on their face, but Mr. Clinton's lie was to avoid causing him and his family embarrassment. The lies of the Bush administration brought us to war, killing and wounding thousands of our own soldiers and innocent citizens of Iraq, brought about world hatred against us, the loss of the respect of our allies and a government, apparently so intent in spreading democracy abroad, that it has forgotten to practice it here at home.

The irony is summed up by the fact that no one has been indicted or punished for the outing of Valerie Plame, despite President Bush's assurances that he would do so. The sentence of the one person charged and convicted of covering up the underlying crime has been commuted, and the only person imprisoned as a result, was a newspaper reporter for her stand in protecting the First Amendment.

LOST PANTS SUIT v THE SUPREME COURT

It is a toss-up for me as to whether the nation's perception of our judicial system is injured more by the judge who is suing for $54 million over his lost trousers or by the Supreme Court's decision dismissing an appeal that was filed within the time period specifically allowed by a federal judge----on the grounds that it was filed too late!

In Bowles v. Russell the petitioner moved to extend the period for filing a notice of appeal. The District Court granted the motion and granted him 17 days to file, rather than the 14 days authorized by the applicable Federal Rule of Appellate Procedure. He filed within the time period prescribed by the District Court order. The Sixth Circuit dismissed the appeal on the grounds that the notice was untimely, and the Supreme Court affirmed, agreeing that, as a result of the untimely filing and despite the petitioner's reliance upon the District Court's order, the Sixth Circuit had no jurisdiction to hear the appeal.

The basis for the ruling was that the time period prescribed by Congress was "mandatory and jurisdictional". In doing so the majority chose to ignore that line of cases holding that time prescriptions are not jurisdictional, unless Congress has specifically designated them so. But even if the majority's analysis is correct, it not only failed to create an exception based upon the petitioner's reliance upon the District Court's order, but rather chose to overrule existing decisions which would have saved the appeal. I suppose that one cannot argue with the logic that if the time period is "jurisdictional" that a court cannot confer jurisdiction after it ceases to exist, and that neither"unique" nor any other kind of circumstances can confer jurisdiction that has already expired. But this case does not involve a delineation of the kinds of cases that federal courts may hear but rather a rule for processing claims in those matters over which the courts have jurisdiction.

But consider these circumstances: The error was brought about solely by the court. The petitioner neither contributed to nor caused it. Actually it is inaccurate to say that the District Court extended the time to 17 days. The Court actually fixed the date by which the appeal was to be filed, and it turned out be 17 days. The mere date would not have put the petitioner or his counsel on notice unless they calculated the elapsed time. There is nothing to indicate that the notice of appeal could not or would not have been filed within the 14 day period, if the order had required it, nor is there any evidence that any party was prejudiced by the 2 day delay. No objection was made by the respondent to the extension, presumably because neither counsel noticed it.

The bottom line is we have an appeal dismissed in a murder case (notwithstanding that petitioner filed his notice of appeal in accordance with the time specifically granted him by a United States District Court) on the grounds that the Court exceeded its authority in fixing the time through no fault of the petitioner. Has strict construction replaced all sense of fairness?

IS CELEBRITY JUSTICE UNEQUAL?

I cannot believe that I am writing about the Paris Hilton case, but I find that it has some significance. The Sheriff in the Paris Hilton case insists that he did not "re-assign" her to home-confinement because of her celebrity status, but rather that it motivated the severity of the sentence imposed by the court. The Sheriff contends that Paris Hilton received a much stiffer sentence than someone else would have received with the same history and charges. And my question: is there anything wrong with that? Would it be appropriate for a court to impose a lengthier sentence upon a person solely because of his or her public persona or position compared to a lesser known person guilty of the same offense, all other things being equal?

I have always been a skeptic about the deterrent effect of punishment. But in a recent argument before the Supreme Court, in a case in which a prosecutor seeking the death penalty implored the jury to "send a message" to like-minded, potential offenders, Justice Kennedy said deterrence is one of the reasons we have the death penalty. If deterrence is a proper goal of sentencing, would not a severe sentence upon a celebrity such as Paris Hilton or a high public official such as "Scooter" Libby serve that purpose, because the world would be watching and the message would receive far wider dissemination than with some unknown defendant.

Likewise, should not a judge take into consideration that a person who has had every advantage that money, education, position and power can offer, nonetheless violates the law? Would it be inappropriate to treat that person more harshly than the person who has had none of those advantages? Should not a well-educated person holding a high position in the government receive a harsher sentence for obstruction of justice and perjury than an unemployed, uneducated street criminal?

The judge in the Hilton case also might have wanted to dispel the common perception in this country that the rich and powerful can escape the consequences of their actions, while the poor and minorities must suffer punishment for their conduct. We make distinctions all the time in sentencing. We treat the man who robs the grocery store to feed his family differently from the one who does it to feed his drug habit. The crime is identical, but the motive is not.

I spent 15 years imposing sentences---in the hundreds, maybe in the thousands. There is nothing more difficult or agonizing for a judge. Equal treatment under the law is an elusive concept. We do not want the rich and famous to receive leniency because of their status, but is there some justification to treat them more harshly because of it?

AN OPEN LETTER TO THE VOLOKH CONSPIRACY

My thanks to the Volokh Conspiracy for fulfilling my purpose in starting a blog. I did so in the hope that I could engage and encourage reasonable and rational discourse on a number of topics in which I had an interest. Responses to my posts were rather meager until this week when the Volokh Conspiracy at the instigation of my former law clerk, Eric Muller, referred to my post on X-Judge: Interrogatories for Prosecutor Fitzgerald. Frankly, I had hoped that prior posts would have created the same kind of activity, but I have learned as a neophyte in the blogoshphere that they need a boost from such respected and recognized sources as The Volokh Conspiracy or Is That Legal?. I thank you both for launching me. I hope that it is only the beginning.

The irony is that it was a comment to the Volokh Conspiracy on the day that Prof. Orin Kerr was kind enough to announce the launching of my blog, that caused me to consider ending it the moment it began. Apropos of nothing James Fulford referred readers to Jonathan R. to learn how wrong my decision was in granting habeas corpus to Rubin "Hurricane" Carter. I do not know Mr. Fulford or the mysterious Jonathan R or their credentials, but the clear suggestion is that there is where the truth can be found.

The article is entitled: WHAT'S WRONG WITH JUDGE SAROKIN'S DECISION? PLENTY! The "truth" is placed side-by-side with a column entitled: What Sarokin Says. I have no intention nor the time to go back and review my decision (incidentally written almost 25 years ago) to determine whether or not the quotes attributed to me are accurate. But to take just a few for example, I cannot visualize my saying in an opinion:

"Lieutenant DeSimone's testimony on Carter's account of his whereabouts cannot be believed for some reason." or
"Anna Brown perjured herself to help her daughter marry a policeman."

I know a little bit about my own writing style, and those sure don't sound like me. But even if accurate, virtually none of the "inaccuracies and misstatements" have anything to do with the basis for my decision. I found that the prosecutor made an improper appeal to racism in his closing, and that a false report regarding a lie detector test was used to manipulate a witness (Bello) to return to his original testimony at the first trial that he was outside the bar when the shootings took place and not inside as he was prepared to testify at the second trial (and if my recollection is wrong here---the opinion speaks for itself.)

There, indeed, may be factual inaccuracies in my opinion. (The record was over 140,000 pages.)There also are others who disagree with the conclusion, but what astonished and disheartened me was the source of Jonathan R.'s "truth". He did not refer to the lengthy record, the petitioner's briefs and submissions, the unanimous affirmance of my decision by the United States Court of Appeals, nor the denial of cert. by The United States Supreme Court. No, his sole source to conclude that my decision was wrong was the brief of the prosecutor!----the losing party! If that is the test, then I am certain one would conclude that all of my decisions denying habeas corpus relief were also wrong, if one simply compared them against the petitioner's brief.

I do not want to spend my time sticking my thumb in the dike of every criticism that flows out against me, but sometimes when someone else's finger pokes me in the eye, I feel the need to respond. (As I did with the National Review- see X-Judge THE NATIONAL REVIEW RE-TRASHES ME). I know that being out here in space makes me vulnerable, but I hope I can spend the time discussing the issues rather than defending my past---- of which, incidentally I am very proud.

My thanks again to Eugene Volokh, Orin Kerr and Eric Muller for giving me the opportunity to be heard, even though I have found that in blogging ---- it is better to give than receive.

INTERROGATORIES FOR PROSECUTOR FITZGERALD

I. Lewis "Scooter" Libby, Jr. has been convicted and sentenced. The debate rages over the propriety of the prosecution, the severity of the sentence and the probability of a pardon. I wince at those who belittle the charges of perjury and obstruction of justice. But I do agree that the failure to indict as to the underlying charge of "outing" Valerie Plame as a CIA operative requires some explanation.

Federal grand jury presentments are no longer in favor for reasons too complicated to discuss here, but in view of the length and expense of this investigation and the public interest involved, it would seem that the special prosecutor should issue some statement or report as to the result of that investigation, unless there is some prohibition against his doing so. In view of the obvious thoroughness of Mr. Fitzgerald's investigation, he, more than anyone else, has the knowledge of what actually transpired. Here are some of the questions that should be answered:

1. Was a crime committed in the outing of Valerie Plame Wilson? If so, why was no one indicted?

2. If not, what elements were missing?

a. Is it because she was not "covert" as many have claimed?

b. Is it because of the geographic location of her station?

c. Is it because of some time period?

d. What other reasons were there for not prosecuting?

3. Who were the persons responsible for the disclosure of the information regarding her?

4. Was an agreement reached between the prosecution and Robert Novak? If so, what were the terms?

5. Did the prosecutor make any recommendations or referrals for actions (other than criminal) such as disciplinary, to be taken against any individuals other than Mr. Libby, and if so who and what? Would he recommend any now?

Some of these matters were or may have been presented during the course of the Libby trial and reported in the media. However, the country deserves the details in a formal presentation from the official in charge, when it appears that the power of the administration was utilized and abused for the sole purpose of discrediting a critic on an issue relevant to our going to war against another country.

THE DISCRIMINATION HISTORY DEFENSE

Based upon the Supreme Court's decision in Ledbetter v. Goodyear, an employer that is currently practicing pay discrimination can defend against a victim's claim by proving that it had engaged in such discrimination for a long period of time. In other words, incredibly if an employer can demonstrate that it had a history of pay discrimination that was initiated and existed more than 180 days before the employee filed her claim, then the claim will be barred. I visualize this future courtroom scenario:

Plaintiff's Counsel: Your honor, the moment my client discovered that she was being discriminated against in respect to her pay, she immediately filed the appropriate claim and this lawsuit.

Defense Counsel: Your Honor, the Ledbetter decision provides an absolute defense to this action. My client has a long history of discrimination, and its credo is never to pay women, African-Americans or Hispanics what it pays to white males for the same work or position. Since the discrimination begins the day they are hired and we have employed the plaintiff and these other employees for years, although the disparity continues to this day, this complaint must be dismissed, because more than 180 days has elapsed since we started discriminating against her.

The Court: Counsel, in accordance with the Ledbetter case, since you have established that your client has had a long history of discrimination, the motion to dismiss will be granted.

The Court has concluded that the "unlawful employment practice" occurs when the salary is first fixed and that the required claim must be made within 180 days thereafter. Apparently this time line applies "even if the effects of the initial discriminatory act were not immediately apparent to the worker and even if they continue to the present day". (NYTimes 5/30/07) Putting aside the practical problems faced by an employee in attempting to learn about the pay disparity, and the hesitancy one might have to sue despite that knowledge, how can its continuance not be an "unlawful employment practice"?

Supporters of the opinion point out that it eliminates stale pay claims. But this decision does not deal with how far back the claim may go, but rather whether it reaches the threshold of allowing the claim at all. It is inconceivable to me that an employer can be shielded from a continuing pay discrimination claim solely on the grounds that the discrimination has been ongoing for a long time, but that is exactly what this decision holds. A history of discrimination constitutes a defense to a discrimination claim!