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Thursday Roundup

Diversity training.  The New York Times provides yet another reason why I don't get all tingly about President Obama's pick of Merrick Garland for the Supreme Court.  In an article headlined, "In Criminal Rulings, Garland Has Usually Sided With Law Enforcement," we learn that "of 14 criminal cases identified by The New York Times in which Judge Garland voted differently from at least one fellow judge, he came down in favor of law enforcement 10 times."  Not once did Garland dissent in favor of the defendant.

That's perhaps not surprising, since in his pre-judge life he was a Federal prosecutor.  One-third of the Supreme Court justices are women, which is slightly below their proportion in the general population.  But one-third of the population aren't former prosecutors, and should Garland be confirmed, which admittedly is highly unlikely, he will join two other former prosecutors, Alito and Sotomayor.  The last criminal lawyer to sit on the Court was Thurgood Marshall, who retired a quarter-century ago.

That's not to suggest that prosecutors invariably side with the government in criminal cases.  The greatest expansion of criminal rights came during the Warren Court era, presided over by a chief justice who'd been a prosecutor.  And Sotomayor, for example, has probably been the most pro-defendant justice presently on the Court. 

Alito, not so much ...  And given Garland's track record, it seems likely he'd wind up on Alito's side in criminal cases more often than Sotomayor's.

This probably reflects more on the nomination process than anything else.  Presidents want a "clean" nominee, one who provokes as little controversy as possible.  Last week, I pointed to an ad run by a conservative group about a potential Supreme Court nominee, Jane Kelly, a former public defender.  The ad lambasted her for her representation of a child molester.  That's simply not going to play in a Republican Senate, and maybe not in a Democratic one, either.  Doesn't mean it shouldn't happen; it just means that it likely won't.

Another expansion of Federal criminal law.  We all know the story of Carol Bond.  She found out that her best friend was having the baby of Jane's husband, and retaliated by smearing some chemicals she'd ordered from Amazon on the door knob of her friend's house and car, causing a minor rash that went away when washed with soap and water.  For this, she was prosecuted for violating a Federal statute which implemented the Vienna Chemical Weapons Convention.  She had to go to the Supreme Court twice before the Court eventually decided that was stupid.

And we know the story of John Yates.  He's a commercial fisherman, and he caught some undersized red grouper in Federal waters in the Gulf of Mexico.  Rather than face a violation for that, Yates ordered a crew member to toss the grouper overboard.  For this, Yates was prosecuted for a violation of the Sarbanes-Oxley Act, which was designed to prevent financial institutions from destroying records.  Yates only had to go to the Supreme Court once before the Court decided that was stupid.

From Overlawyered, we learn this: "Recently, Representative Ken Buck [R-Colo.] introduced the Blue Lives Matter Act of 2016, which would amend the Matthew Shepard and James Byrd Jr. Hate Crimes Prevention Act of 2009 to make any attack on a police officer a federal hate crime."

Now, this isn't stupid in the same sense as Bonds' and Yates' cases were.  The Act, if passed, won't present the situation in those cases, where the law was stretched by prosecutors way beyond what Congress intended.  Here, the law will do exactly what it says.

And that's still stupid.  Ohio has laws on the books for crimes against policemen.  A simple assault - say, pushing a guy down - is elevated to a fourth degree felony if the guy happens to be a police officer.  If it's felonious assault - say, trying to run down someone with a car - that goes from a second degree felony to a first degree felony if the person in the path of the car is wearing a blue uniform. 

Between 2000 and 2007, Congress enacted 450 new crimes.  That's an average of more than one a week.  I'm not seeing a burning need to add this one.

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