What I'm Getting Mr. Trump For Christmas

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OK, so I checked on Amazon and there is actually a book called “The U.S. Constitution for Dummies.” That settles the question of what I’m getting our president-elect for Christmas.

Because — I’ve got to tell you folks, some of Mr. Trump’s latest actions and public pronouncements make me wonder if he’s ever heard of the document, much less read it.

Take, for instance, this tweet he sent at 6 in the morning this past Tuesday: “Nobody should be allowed to burn the American flag — if they do, there must be consequences — perhaps loss of citizenship or year in jail!”

For those of you wondering “where did that come from?” there was apparently a Fox News story that ran about that time on that issue, and of course, if Fox News does a story on it, the soon-to-be-leader of the fee world has to weigh in immediately.

The only problem is, it’s well-settled law that burning the U.S. flag as a means of protest is protected speech under that pesky First Amendment.

No less a conservative lion than the late Antonin Scalia stated that “If I were king, I wouldn’t go about letting people burn the American flag,” but that “we have a First Amendment which says that the right of free speech shall not be abridged.” Scalia, however he may have gritted his teeth at having to do so, signed on to a Supreme Court opinion striking down a Texas law that made flag-burning a criminal offense.

Note, however, that Trump, a man who’s said he wants justices “in the mold” of Justice Scalia, was suggesting that maybe he’d go further than imprisonment, to outright revocation of citizenship.

This raises the question of whether Mr. Trump is aware of the Fourteenth Amendment, which provides that “All persons born or naturalized in the United States, and subject to the jurisdiction thereof, are citizens of the United States and of the State wherein they reside.” There’s no provision for the president or anyone else revoking someone’s citizenship, especially for acts protected under the First Amendment.

I’m sure some Trumpkins will fall back to their default defense, namely “But Hillary!” and point out that in 2005, then-Sen. Clinton co-sponsored a bill that would have criminalized the burning of the U.S. flag for the “primary purpose of intimidation or inciting immediate violence or for the act of terrorism.”

Well, let me say this about that: (1) She was wrong, and engaging in the kind of pandering that led me to describe her as “Republican Lite” for years; (2) The bill failed, as it bloody well should have; and (3) enjoy “But Hillary!” in the last few weeks you’ll be able to use it. Pretty soon she’s going to be off the public stage, and bringing her up will just seem more and more sad and desperate.

There are those who have suggested that PEOTUS is merely pumping out outrageous tweets to draw public and press attention away from the more serious issues posed by the many conflicts of interest posed by his business interests, both in America and abroad.

Here again, we invite Mr. Trump to peruse the Constitution, in particular the often-overlooked “Emoluments Clause” of Article One, which forbids anyone “holding any Office of Profit or Trust … without the Consent of the Congress,” from accepting “any present, Emolument, Office, or Title, of any kind whatever, from any King, Prince, or foreign State.”

Now, considering the negotiations and entanglements Mr. Trump and his worldwide enterprises have in foreign states and the desire of kings and princes to curry favor with the most powerful man in the free world, one would think that Mr. Trump might want to steer clear of not only actual conflicts of interest, but also of what we in the law biz call “the appearance of impropriety” in business concessions or payments from foreign leaders.

One might think that. But, as one of my old law professors used to say, one would be wrong. Mr. Trump has indicated that he’ll leave his businesses to be run by his children, but would “presents, Emoluments, Offices, or Titles” given to a Trump scion insulate Trump himself from charges of corruption? Let’s just say I have my doubts.

The House and Senate are all lovey-dovey right now, but Mr. Trump has said some pretty harsh things about the party he leads, and in particular about the Speaker of the House. Once the celebrations are over and the hard give-and-take of governing begins, he may be on thinner ice than he realizes.

So enjoy my gift of “The U.S. Constitution For Dummies,” Mr. President-Elect, and I hope that you read with close attention, particularly Article 2, Section 4. That’s the one about impeachment for “treason, bribery, or other high crimes or misdemeanors.”

A Constitutional Inconvenience?

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Right-wingers love to talk about how much they love the Constitution. But while they may love it, sometimes it seems like they don’t like it very much.

Bring up the protections of the Fourth through Eighth Amendments, and they’ll tell you that “we give too many rights to criminals.” They’re not all that crazy about the 16th Amendment, which establishes the government’s right to levy income taxes.

In fact, the only Amendment they seem to like is the Second, and they treat the first half of that (about the “well-regulated militia”) as if it were an embarrassing relative whom they don’t like to talk about very much.

The latest thing the wingnuts don’t like about the Constitution is the 14th Amendment, which provides that “All persons born or naturalized in the United States, and subject to the jurisdiction thereof, are citizens of the United States and of the State wherein they reside.”

That “all persons” provision means that if you’re born here, you’re an American. Period. This Constitutional principle, commonly known as “birthright citizenship,” has become problematic for people who spend most of their waking hours terrified of the tide of Scary Brown People Who’ve Come to Take Our Stuff.

Donald Trump, as the current de facto leader of the Republican Party, brought the issue to the forefront. Following up on his famous “they’re rapists” comment, he laid out his plan for dealing with the estimated 11 million people already here illegally: “They have to go.”

Asked about what happens to those whose children were born here, Trump, a good family man if ever there was one, claimed we’d keep families together, but “they have to go.” When Bill O’Reilly pressed him on the question of deporting actual U.S. citizens, Trump blithely hand-waved away 147 years of 14th Amendment precedent, telling O’Reilly that “very good lawyers” had told him calling them citizens is “not going to hold up in court.”

Yes, folks, you heard right. The 14th Amendment, which clearly states that if you’re born here you’re a citizen won’t survive constitutional scrutiny, according to unidentified “very good lawyers.” In other words, Donald Trump apparently thinks the Constitution itself is unconstitutional.

This is, of course, utter claptrap, and deserving of nothing but scorn and derision. But since the majority of the Republican field are like rudderless sailboats that blow hither and yon in the wind that emanates from Donald Trump’s wherever, they began rushing to assure us that they, too, either didn’t believe in birthright citizenship at all or that they thought it needed to be done away with.

“We need to end birthright citizenship for illegal immigrants,” Gov. Bobby Jindal’s campaign declared on Twitter. Dr. Ben Carson told Breitbart.com that “it doesn’t make any sense to me that people could come in here, have a baby and that baby becomes an American citizen.” Sen. Lindsey Graham took a moment off from gibbering about Islamic terrorists under everyone’s bed to say, “I think it’s a bad practice to give citizenship based on birth.”

Former Sen. Rick Santorum insists that we don’t have to amend the Constitution to do away with birthright citizenship. We “merely have to pass a law.” I guess this is true if by passing a statute we can change the literal meaning of the words “all persons born” to “all white persons born.”

For his part, Wisconsin Gov. Scott Walker seemed to be vying for the coveted Mitt Romney Ribbon for Campaign Weaselry. Walker told NBC reporter Kasie Hunt in response to a direct question that we should “absolutely” abolish birthright citizenship. Later, however, he said to CNBC he is “not taking a position on it one way or the other.” Still later, he took a third stance with ABC’s George Stephanopoulos, answering “no” when asked if we should “repeal or modify” the 14th Amendment—but only after Stephanopoulos had asked him three times.

But remember folks: Only Democrats flip-flop. Republicans “evolve.” Walker’s “evolving” before our eyes like something that came out of an egg in a bad horror film.

I well remember the screaming tantrum the Republicans threw when it was revealed that Barack Obama once called the Constitution as originally written “an imperfect document … that reflects some deep flaws in American culture, the Colonial culture nascent at that time.”

He was, of course, talking about the way the original document embraced slavery as an institution, but from the way Rush Limbaugh and others reacted, you’d have thought the president had proposed using the sacred text to line the White House birdcage before setting it on fire.

Amazing, though, how disposable the beloved Constitution becomes when it comes to getting at the Scary Brown People — and their children. Principles you discard when inconvenient to your prejudices are not principles at all.

The Curious Incident of the Supreme Court

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Ah, the first Monday in October. A day of great interest to those of us in the law biz, because that’s the day the Supreme Court of the United States officially starts its term.

This year, the Supremes began by, like the dog in the Sherlock Holmes story, doing a curious thing: nothing. They decided not to review the decisions of lower courts which struck down bans on gay marriage in seven same-sex marriage cases.

Because those appeals courts also have jurisdiction over more than just the states the original cases came from, bans on same-sex marriage will almost certainly fall in those other states as well. For example, the U.S. Court of Appeals for the Fourth Circuit, which struck down Virginia’s gay marriage ban on constitutional equal-protection grounds, also has jurisdiction over West Virginia, North Carolina and South Carolina.

Therefore, while a challenge to North Carolina’s egregious Amendment One hasn’t yet reached the Fourth Circuit, it’s legally dead in the water, waiting only for the harpoon, and the Supreme Court isn’t going to try to resuscitate it.

On Tuesday, the mighty Ninth Circuit, which covers Alaska, Arizona, California, Hawaii, Idaho, Montana, Nevada, Oregon and Washington, struck down same-sex marriage bans in Idaho and Nevada. By the time the effects of the decisions are fully felt, 35 states will likely have to recognize the right of same-sex couples to enjoy the same legal rights the rest of us take for granted.

As one might expect, the haters and bigots went nuts. Sen. Green Eggs and Ham himself, Mr. Ted Cruz of Texas, referred to the decision of the SCOTUS not to intervene as “the worst kind of judicial activism.”

Get that? Doing nothing is now “activism.” Proof once again, as if you needed any, that the words “judicial activism,” like the words “liberal” and “leftist,” have been robbed of all meaning other than “anything I don’t like.”

Meanwhile, Sen. Mike Lee of Utah fell back on the tired and hackneyed complaint about “unelected judges”: “Whether to change that definition [of marriage] is a decision best left to the people of each state — not to unelected, politically unaccountable judges.”

Sadly, Sen. Lee, like most right wingers claiming to be defenders and upholders of the Constitution, seems to know very little about it. See, according to that pesky old Constitution, federal judges, including those on the Supreme Court, aren’t elected, and therefore not “politically accountable.”

That’s how the whole thing was set up from the beginning, for the very reason that the interpretation of federal law (including the Constitution) shouldn’t be subject to the vagaries of political opinion, and that you can’t “leave it to the people of each state” if what they decide to do, even via popular vote, violates the Constitution. You got a problem with that, take it up with the Founding Fathers.

It’s particularly amusing because Sen. Lee himself used to work for one of those “unelected and politically unaccountable” judges, namely Justice Samuel Alito, for whom Mr. Lee clerked. So we can assume he knows better and is just playing to the rubes — sorry, I mean the “base.”

As of this writing, the rulings and others like them have not caused the collapse of so-called “traditional” marriage. Despite the fretting of Butch Otter, Idaho’s wonderfully named governor, allowing same-sex marriage has not led “opposite-sex couples to abuse alcohol and drugs, engage in extramarital affairs, take on demanding work schedules, and participate in time-consuming hobbies.” At least not any more than they already do.

As Ninth Circuit Judge Stephen Reinhardt drily observed in responding to that argument, “We seriously doubt that allowing committed same-sex couples to settle down in legally recognized marriages will drive opposite-sex couples to sex, drugs, and rock ’n’ roll.” Dang it, I was so looking forward to that.

All that said, the issue isn’t completely over. It’s entirely possible that another federal circuit — say the Fifth (Louisiana, Mississippi, and Texas), Sixth (Ohio, Kentucky, Michigan and Tennessee), or Eleventh (Alabama, Florida and Georgia) — which still have cases on marriage equality pending, may decide differently than the ones whose decisions the Supreme Court left alone.

That would create the dreaded “split between circuits,” at which point the Supremes would almost certainly decide they needed to step in and resolve the question once and for all as to whether states can deny people the fundamental right to marry and equal protection of the law just because they’re different.

Let’s hope they decide to stay on the right side of history and tell them, “No, you can’t.”

Suppose They Had a Revolution and Nobody Came

The Pilot Newspaper: Opinion

Those wild and wacky wingnuts are at it again!

What are those zany scamps up to this time? Why, trying to overthrow the government, of course! Unfortunately for them (and hilariously for citizens of the non-crackpot variety), the government didn’t seem to notice.

It happened (or more accurately, didn’t happen) last weekend, at an event called Operation American Spring, OAS for short. OAS was the “brainchild” of a former U.S. Army colonel named Harry Riley. On his website, Riley laid out his plan to “restore the Constitution.” In fine military fashion, Riley broke the op down into three “phases.”

1: OAS would “field millions, as many as 10 million, patriots” who would assemble on the National Mall in Washington, D.C., “spiritually/ Constitutionally armed” to replace the “current government.”

2: One million of the 10 million (Riley later told Alan Colmes that the count could go as high as 30 million) would remain on-site “as long as it takes to see Obama, Biden, Reid, McConnell, Boehner, Pelosi, and Attorney General Holder removed from office.”

3: “Those with the principles of a West, Cruz, Dr. Ben Carson, Lee, DeMint, Paul, Gov. Walker, Sessions, Gowdy, Jordan, should comprise a tribunal and assume positions of authority to convene investigations, recommend appropriate charges against politicians and government employees to the new U.S. attorney general appointed by the new president.”

Yes, there’s nothing that says “restoring the Constitution” like a minority of disgruntled voters overthrowing a freely elected government because they didn’t like the election result, then establishing an unelected tribunal to arrest and punish those they designate as political undesirables. Reign of Terror, anyone?

The coup wouldn’t be easy, Riley warned.

“It will be painful,” he said, “and some people may die because the government will not be nonviolent; some of us will end up in a cell, and some may be injured.”

A fellow named Terry Trussell, who identified himself as OAS’s “chief of staff,” told the “Patriot Nation” radio show that “if things got bigger,” the administration could “pull in drones,” but confidently predicted that “when the government destroys the capital just to get rid of us, I think it’s going to work to their discredit.”

Well, yeah, I guess that would be true. If, that is, the basic premise of the statement weren’t bat-spit crazy.

So the big day, May 16, rolled around, and — well, not much happened. From the live feed that the OAS people thoughtfully set up on the Internet, it looked like about 200 people showed up. It was kind of hard to tell, because for a long time, the camera was apparently lying on its side.

What could be seen in the feed, and in various photos posted from the event, was small knots of people (mostly older, almost exclusively white) milling around aimlessly, shouting a lot, and most definitely not being slaughtered by Obama’s Killer Drones.

“It’s a very dismal turnout,” 61-year-old Jackie Milton, the head of Texans for Operation American Spring, glumly told The Washington Times. One “patriot” was even more poignant; he stood in front of the camera and screamed “Where you AT?” over and over.

It is true that, in advance of the coming of the OAS wavelet, the president and Mr. Biden actually did flee the White House — all the way to a local Shake Shack, where they had a nice lunch and talked to reporters about raising the minimum wage. From the pictures, a lot more people showed up at that event than at the Mall.

Faced with this kind of embarrassment, some OAS supporters took to Twitter, with a variety of excuses for the poor turnout that were so lame that #Americanspringexcuses became a trending topic all its own.

30 million "patriots" descend on DC disguised as empty chairs! Clint Eastwood was proud! #OperationAmericanSpring pic.twitter.com/PbTxMUbCIB
— KHARY PENEBAKER (@kharyp) May 17, 2014

Some posted photos of massive crowds on the Mall, only to have others note from a cursory examination of the signs and clothing that the pictures were from civil rights marches from 40 years ago.

My personal favorite was the often-repeated “well, a lot of these patriots have jobs.” Possibly, but here’s a thought: When the horrible tyranny under which you claim to suffer isn’t enough to make you ask for a personal day to overthrow the government, then maybe the tyranny isn’t so horrible after all.

Another right wing attempt to overturn the election has failed, because, despite the drama-queen ranting of the worshippers of “West, Cruz, Dr. Ben Carson,” etc., normal people look around and, for the most part, see things as getting better. They may not be completely happy, but unlike the deluded misfits of OAS, they’re not unhappy to the point of treason.

That Person-of-the-Year Thing

The Pilot Newspaper: Opinion

OK, so one week I write a column lauding Pope Francis I and the very next week he gets named Time magazine’s Person of the Year. More than coincidence? Perhaps. But as much as I do admire this pope, I think Time made the wrong call.

It’s always been somewhat puzzling to me that the choice of Person of the Year is eagerly awaited by the media and often causes controversy. A lot of people seem to regard it as some sort of reward or honor.

This, despite the fact that every year Time stresses that the award goes to the person who “for better or for worse, has done the most to influence the events of the year,” not just one who’s been the nicest, most positive, or most beneficial to mankind.

(This still doesn't explain why Time said demented teen songstress Miley Cyrus was among its top contenders this year, but perhaps there are some things we aren't meant to know.)

Time’s been naming a Man of the Year since 1927, when aviator and Adolf Hitler apologist Charles Lindbergh got the nod. Hitler himself was named in 1938, which is probably why he felt cocky enough to invade Poland the next year.

Other luminaries achieving the status of Man (or Person) of the Year include Queen Elizabeth II, Bill Clinton and George W. Bush.

It was in 1999 that they started calling it Person of the Year. Sometimes, the Person of the Year isn't an actual person at all, like the years the magazine named “The Computer” (1982) or “The Endangered Earth” (1988).

Then there was the year Time copped out completely, put a mirrored panel on the cover and proclaimed that the Person of the Year was … wait for it … “You”! It was like something from some half-baked self-affirmation book, or maybe an Oprah episode.

You may have gathered from this that I think the whole POTY thing by Time is pretty lame, and you’d be right. Especially this year. I think the title should have gone to that prolific leaker of NSA secrets, Edward Snowden, who only made runner-up for POTY.

Whatever you may think about Snowden himself (and I for one don’t think anyone who flees to Russia is any kind of hero), there’s no denying the effect of his revelations about just how far American surveillance of people, even its own citizens, has gone.

People were also stunned to discover just how much of it is legal, such as the collection of so-called “metadata,” showing what numbers were called when and for how long.

The Supreme Court, as far back as 1979, ruled that that kind of data collection wasn’t even a search for Fourth Amendment purposes, because “we doubt that people in general entertain any actual expectation of privacy in the numbers they dial.”

No one thought much about that at the time, because hey, we were fighting crime, right?

But once the Supremes ruled gathering that kind of data wasn’t a search, it meant it was fair game for any purpose, anywhere.

Even when programs like the FBI’s Carnivore and DARPA’s Total Information Awareness (TIA) came to light in the early 2000s, only a few voices, such as the Electronic Frontier Foundation (and, it must be mentioned, your Humble Columnist), expressed any alarm at all, and they were regarded as crackpots at best.

At worst, they were told they were trying to subvert the Dear Leader George Dubbya’s Global War on Terror and that they wanted to bring on another 9/11.

It wasn’t until Snowden revealed the breadth of the net the NSA was casting (and until the election of a Democratic president terrified wingnuts into realizing that giving power to one president meant the next one kept it) that the general public started to wake up to the need to ask some hard questions about how much privacy we’re willing to give up, and how maybe we need to change the laws as they stand.

The words and deeds of Francis I may have an effect far beyond this year. I hope they do. In that case, I’ll enthusiastically endorse him for Person of the Decade, may even of the Century.

However, as much as I admire and respect His Holiness for, in Time’s words, “pulling the papacy out of the palace and into the streets,” it’s Snowden pulling NSA surveillance out of the shadows and into the light that’s “done the most to influence the events of the year.”

Get It Now, Get It First, Get It Wrong, Redux

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One of the most aggravating features of our multi-network, Twitter-driven, twenty-four-hour news cycle is something that invariably happens in the wake of a horrible event like last week’s bombing at the Boston Marathon: driven to get something, anything, out there, the cable news channels, the airwaves, and the Twitterverse became veritable fountains of misinformation. Apparently, the old journalistic principle that you didn’t go live with something unless you’d verified it with at least two sources is as dead as Walter Cronkite. Now what they report on is what’s been “reported,” whether or not said “report” is actually true or even from a credible source. Hey, they’re not lying. All they’re saying is that someone else said it. Such is the sorry state of “journalism” today. 

So in the aftermath of the carnage, unsubstantiated rumors and gossip became “reports”, which were breathlessly passed on but which quickly became discarded as new and more lurid rumors took center stage. The device was a pipe bomb. There were two other devices found that hadn’t exploded. No, three. Twelve people were dead, among them an eight year old girl who’d come to see her Daddy run the marathon. A Saudi national had been arrested running from the scene. And, of course, before the echoes of the blasts had died down and the wounded were still bleeding in the streets of Boston, conspiracy theorists like Alex Jones of the online nuthouse Infowars were proclaiming that the whole thing was a government conspiracy. (When an Infowars “reporter” asked if the bombing was a “false flag operation to take away our civil liberties,” Governor Deval Patrick’s three-word response was a lesson in how to handle stupid questions: “No. Next question.”)

The wave of BS reached a crescendo on Wednesday when CNN said there were “reports” that a suspect had been identified. Then there were “reports” that there was a suspect in custody. Then there were “reports” that there wasn’t. Finally, the Boston FBI office released a statement refuting the story: “Contrary to widespread reporting, no arrest has been made in connection with the Boston Marathon attack.” Once can almost hear the exasperation as the release goes on to say: “Over the past day and a half, there have been a number of press reports based on information from unofficial sources that has been inaccurate. Since these stories often have unintended consequences, we ask the media, particularly at this early stage of the investigation, to exercise caution and attempt to verify information through appropriate official channels before reporting.” 

Yeah, good luck with that. 

The part about “unintended consequences” brings to mind one of the most pernicious effects of misinformation: if you say one thing today, and say something different tomorrow, there are thousands of the above-mentioned conspiracy theorists out there who’ll insist that the correction was not an attempt to set the record straight, but is part of a cover-up. For example, after the Newtown massacre, one incorrect MSNBC report that killer Adam Lanza (originally misidentified as his brother Ryan) had left his Bushmaster semi-automatic mass murder weapon in his car is still being seized on to this day by callous gun nuts to “prove” that the government is lying about assault weapons to promote the “gun control agenda.” Of course, these are the same people who won’t believe anything else ever reported on MSNBC, but you can’t expect consistency from crazy people. 

Sure enough, as soon as it was revealed that the “Saudi national” who was supposedly taken into custody was being questioned as a witness, not a suspect, commenters at the right wing website “the Blaze” were proclaiming that the President was “protecting his Muslim brothers.” 

I know we can’t forbid news organizations from spreading misinformation (darn that pesky First Amendment!). But there ought to be some kind of required warning label on all the crap the news media spreads in the immediate aftermath of a horrible crisis. Something like a disclaimer in the ubiquitous “crawl” running across the bottom of the screen: “Warning: thanks to the near-total erosion of journalistic standards, the so-called ‘information’ you are receiving in this broadcast may be based on rumor, half-truth, prejudice, completely unfounded speculation, or the person on-screen just pulling allegations out of their rear end because they have nothing solid to report but don’t want to just stand there looking like a goober.” If we’re going to be so consistently misinformed by our media, we should at least be informed of that fact.

Dusty Rhoades lives, writes, and practices law in Carthage.

FAQ: Why Bother With a Trial, Anyway?

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[NOTE: As this column was going to press, the jury came back with a verdict of guilty to second-degree murder. Robert Stewart was sentenced to a minimum of 142 years in prison--effectively a life sentence without parole. More thoughts on this next week.]

As of this writing, the trial of Robert Stewart for killing eight people and wounding Michael Cotten and police officer Justin Garner at the Pinelake Nursing Center in Carthage is about to go into closing arguments.

By the time you read this, the jury will likely be in deliberations. Or they may already have reached a verdict.

I don't comment often about local trials. The reason for this is simple: They're not my cases. As I pointed out a few weeks ago in reference to the Casey Anthony trial, unless you're really involved in a trial, on a day-to-day basis, seeing what the jury sees and being excluded from the stuff they don't, it's hard to comment on them with any degree of real authority (although there are plenty of people who pretend to that authority).

The Stewart trial, however, is inescapable, and if you're in the legal business around here, so are the questions from a concerned, occasionally annoyed, and once in a while downright cranky public. While I'm not going to comment upon specifics, there are some frequently asked questions that I can answer, just from a general knowledge of how things work.

The question I see and hear most often is this: "Why do we even have to have a trial? Why are we paying lawyers to defend him? Everyone knows he did it!" The answer is simple: because the U.S. Constitution says so.

The Sixth Amendment reads: "In all criminal prosecutions, the accused shall enjoy the right to a speedy and public trial, by an impartial jury of the state and district wherein the crime shall have been committed ... to be informed of the nature and cause of the accusation; to be confronted with the witnesses against him; to have compulsory process for obtaining witnesses in his favor, and to have the Assistance of Counsel for his defence."

That's in all, repeat all, criminal prosecutions. There's no exception for "really bad crimes" or for defendants who "everyone knows" are guilty. All means all.

Which leads us to the next question: "Why doesn't Stewart just agree to take life without parole?" Yes, I have actually seen this question raised. Friends, I haven't discussed the matter with Mr. Stewart's attorneys, much less with Mr. Stewart, but I would imagine they would take a plea to life without parole in a hot second - if it were offered.

But, like the tango, it takes two to plead, and I haven't heard even a shadow of a whisper of a suggestion that such a plea was even being considered.

Well, you may ask next, why not? Why won't the state just offer life and get this over with?

There are a number of factors that go into the decision by the state whether or not to seek the death penalty and whether or not to consider backing off it. The strength of the particular case is one. The potential public backlash from pleading out a high-profile, emotionally charged case is another. A huge factor is always the wishes of the families of the victims.

But why does it have to take so dadgum long? Believe me, as one of the many folks who have had to navigate around enhanced courthouse security and the courtroom shortage created by this trial, I've asked the same question.

But remember: This is a death penalty case. It's going to be examined and re-examined and re-re-examined by courts, probably all the way up to the U.S. Supreme Court. Neither side's going to cut corners here to save time.

There's also a concept that comes into play called "harmless error." This is a phrase that crops up in some appeals court decisions in which the court concedes that yeah, maybe the trial judge made a mistake in letting in a piece of evidence or some error of law, but they're going to let the conviction stand because "the other evidence of guilt was so overwhelming that this error was harmless."

As for the defense - again, it's a death case. So neither side, prosecution or defense, is going to leave any horses in the barn.

I'm not going to get into a discussion pro or con about the death penalty here, because, let's face it, no one's opinion ever changes on that. But I'll say this, because it's the answer to a lot of questions about this and other trials: If the state's going to take someone's life for breaking the law, then they need to do it according to law.

Otherwise, we're just a well-dressed lynch mob.

Sane Conservatives, Redux

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I've occasionally been accused of being too hard on conservatives in this column. Some have even asserted that I hate conservatives. In fact, nothing could be further from the truth. Some of my best friends are conservatives.

What I’m against, and what I mock on a regular basis, are people who use the mantle of “conservatism” as a cover for meanness, selfishness and bigotry, people for whom so-called “conservatism” isn’t about what you believe, it’s about whom you hate. I actually go out of my way to look for reasonable, rational, non-insane conservatives. I’m pleased to say, the hunting has been pretty good recently.
One thing conservatives profess to love is the Constitution. Remember the brouhaha when Supreme Court nominee (now Justice) Elena Kagan quoted her mentor, Thurgood Marshall, in saying that the Constitution,
as originally drafted, was “defective” because it recognized and legitimized slavery? You’d have thought she’d advocated setting fire to the original ­document and replacing it with Mao’s Little Red Book.
Yes, some conservatives sure do love that Constitution — until its protections start being applied to someone who looks, prays, loves or think differently from them. Freedom of religion? Right to private property? Not for Muslims in Manhattan, bucko! Right to counsel? Shut up, you Islamofascist sympathizers, and bring on the waterboard!
A recent example of conservative disdain for the Constitution arose over the 14th Amendment’s definition of a citizen as anyone “born ornaturalized in the United States, and subject to the jurisdiction thereof.”

That really grinds some ­conservatives’ gears when it’s applied to the children of ­people here illegally. They really hate the idea of those rotten little brown “anchor babies” being citizens, to the point where some Republican senators have called for at least partially repealing the 14th Amendment.
That got to be too much for former CNN newsman Lou Dobbs. It would be hard to find someone more hard-line on illegal immigration than Dobbs, who’s characterized it as “an invasion.”

But he recently went on Fox and said: “The idea that anchor babiessomehow require changing the 14th amendment, I part ways with thesenators on that because I believe the 14th Amendment, particularly inits due process and equal protection clauses, is so important. It laysthe foundation for the entire Bill of Rights being applied to the states.”
Another conservative who suddenly managed to turn up sane was Ted Olson, former solicitor general under George W. Bush and no one’s definition of a bleeding heart liberal.
After a federal judge struck down California’s ban on same-sex marriage, I was pleasantly surprised to find that one of the attorneyswho had argued the case for the plaintiffs was none other than Olson. He afterward went on “Fox News Sunday” and proceeded to calmly demolish Chris Wallace’s argument that the judge had created some kind of “new right” for gays and lesbians.

Olson pointed out that the right to marry a person of your choice has long been defined as a fundamental right, “part of liberty, privacy,association and spirituality guaranteed to each individual under the Constitution.” Pressed on the issue of so-called “judicial activism,” Olson responded that it’s a “judicial responsibility” to overturn laws that violate the Constitution, no matter how many people may have voted for them. “Would you want Fox News’ right to report be submitted to a vote?” he asked Wallace.

One conservative writer and blogger I read regularly is David Frum, former speechwriter for George W. Bush and the author of several books on conservatism, including “Comeback: Conservatism That Can Win Again.” Frum recently responded to an editorial in The National Review condemning the falsely named “Ground Zero Mosque” by using the same sort of rigorous application of the Constitution that conservatives claim to be so fond of (but so rarely adhere to).

“I remain skeptical that the sponsors of this mosque are quite as benign as they have been represented,” he said,“... but the rights guaranteed by the Constitution do not belong only to nice people. And whatever we may wonder about the mosque promoters, we should also remember the mosque’s users: the thousands of Muslims who work in lower Manhattan, every single one of whom is as entitled to pray as any member of Marble Presbyterian or Temple Emanuel.”
Sane conservatives: They’re out there. They don’t get the same press coverage as the nutballs, birthers and death-panel fabulists do, and to tell you the truth, they’re not nearly as much fun to write about. But they’re willing to be fair, and so am I.
At least this week.