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August 2014

Posted by Amy Miller on August 07, 2014 9 Comments
We've previously reported on the uneven playing field upon which campus sexual assault cases are tried. In the world of faux-egalitarian bureaucracy that is the university system, there seems to be little concern for the due process rights of the accused; but one new group is aiming to change that. Families Advocating for Campus Equality, or "FACE," is spearheaded by the mothers of several male students who were falsely accused of sexual assault while at their universities. They're working to change the standards by which students accused of sexual assault are "tried" by universities, and for good reason:
On the basis of a mere accusation, students have been suspended or expelled from school, have been denied their right to attorney representation and have been prohibited from confronting or questioning their accusers. Investigations conducted by college administrators are often faulty, relying on hear-say, rumor, and teenage gossip, while the “burden of proof” -- the amount of evidence necessary to render a finding of guilt -- has been expressly reduced from the more exacting “clear and convincing” to a mere “preponderance” of the evidence. In practice, what this all means is that a student, accused of, say, pilfering another student’s computer in a dormitory, would be entitled to a full and fair hearing with legal representation, a right to confront his accuser, and would be judged by the more exacting “clear and convincing” standard. So, too, for that matter, would someone standing accused of murder in a court of law, where the standard of proof would be “beyond a reasonable doubt.”. But when the accusation is of some variation of sexual misconduct on a college campus -- a charge that itself carries enormous life-altering consequences for the accused -- no such safeguards are afforded.
FACE has, of course, been accused of being "anti-woman" for having the audacity to demand equal justice, but the founders of the group vehemently deny this accusation:

Posted by Bruce Carroll on August 07, 2014 17 Comments
Never mind the turmoil in Iraq, Syria, Israel/Gaza, Western Africa and the imminent threat to Ukraine that Russia poses... there seems to be another war brewing. Earlier today, the President of Azerbaijan published a serious of very threatening tweets relative to neighboring Armenia.

Posted by A.F. Branco on August 07, 2014 3 Comments

Note: You may reprint this cartoon provided you link back to this source.  To see more Legal Insurrection Branco cartoons, click here. Branco’s page is Cartoonist A.F.Branco...

Posted by Andrew Branca on August 07, 2014 144 Comments
The jury has returned a verdict of guilty of second degree murder/voluntary manslaughter and weapons charges in the trial of Detroit homeowner Theodore Wafer for the front porch shooting death of Renisha McBride in the early morning hours of November 2, 2013.  Trial Judge Hathaway has ordered Wafer imprisoned immediately, pending sentencing. UPDATE: Sentencing scheduled for Aug. 21 to Aug. 25 time frame. Wafer's legal defense against the charge was self-defense.  The guilty verdict necessarily means that the jury unanimously agreed that the prosecution had disproved Wafer's claim of self-defense beyond a reasonable doubt.  The two strongest arguments counter to self-defense were:

"Accident" and "I didn't know the gun was loaded"

(1) Wafer's early and repeated references to the shooting as an "accident," including his claims that he was unaware the shotgun was loaded, only to later claim the shooting was an act of "self-defense." "Accident" and "self-defense" are logically inconsistent arguments.  "Self-defense" is an inherently intentionally act--I see a threat, I respond to the threat.  "Accident" is by definition something we do not intend.  When a defendant argues one, they generally lose the other--sometimes as a matter of law, often just in terms of the credibility of their narrative of innocence with the jury. The prosecution in this trial also requested and received a jury instruction on prior false exculpatory statements as consciousness of guilt evidence, and that certainly could not have helped the jury lean towards self-defense if they believed Wafer's early claims of "accident" were an effort to escape legal jeopardy.

Unlocking and Opening the Steel Front Door

(2) Wafer's decision to unlock and open the steel front door of his home. McBride never, in FACT, threatened entry--whatever she might have done to the screen door, there remained the steel door to get through. Had that steel door been substantively damaged or had there been any evidence to suggest an actual entry was imminent, I think Wafer would have been fine. Absent that, however, the jury likely expected him to hunker down and wait until entry was imminent before using deadly force--and certainly not to unlock and open that very steel door that was keeping the "intruders" outside.

Posted by William A. Jacobson on August 07, 2014 3 Comments
One of the enduring claims related to the Gaza war is that pushed by New York Magazine author Katie Zavadski in a viral article originally titled: "It Turns Out Hamas Didn’t Kidnap and Kill 3 Israeli Teens After All (link goes to updated version, not original)(screenshot via Seth Frantzman): https://twitter.com/sfrantzman/status/494216021016723457/photo/1 That claim gave rise to the meme that Israel had concocted a Hamas connection to the kidnapping and murder of three Israeli teens in order to start the Gaza war.  At most, the story went, the kidnapping was carried out by a "lone cell" and thus could not be blamed on Hamas. The claim, however, is falling apart both because it wasn't backed up by facts and because Israel recently revealed that it had arrested the Hamas mastermind, and that there was a definite connection to Hamas.  For background, read these two posts: Today more information was released which further undermines the NY Magazine story, Hamas West Bank head arrested, indicted for planning wave of terror attacks:

Posted by David Gerstman on August 07, 2014 19 Comments
Israeli Prime Minister Benjamin Netanyahu reportedly told the U.S. Ambassador to Israel "not to ever second guess me again" when it comes to Hamas, after Hamas' refusal and eventual breach of ceasefire agreements. Did he have a point? The international community in its zeal to solve the conflict between Israel and the Palestinians makes plenty of suggestions about what needs to be done. One would think that with the number of suggestions it's made that have backfired, it would learn a little humility and perhaps listen a little bit more to Israel when it comes to Hamas. For example, in a recent column, New York Times columnist Roger Cohen called the Israel-Palestinian conflict an "obscenity." At the end of the column he made a suggestion as to how to go about ending the conflict.
Real reconciliation can only come on the basis of an ironclad commitment to nonviolence and to holding of free and fair elections, the first since 2006. Good Palestinian governance, unity and nonviolence constitute the path to making a free state of Palestine irrefutable. The longer Hamas fights this, the greater its betrayal of its people.
What happened in those "free and fair elections" in 2006? Hamas won and established its political legitimacy among Palestinians. A year and a half later it violently forced Fatah out of Gaza and established a stranglehold on the territory. With its newly found freedom to operate it launched thousands of rockets into Israel forcing three wars. But how and why did Hamas, a terrorist organization with a genocidal charter come to participate in those elections? International pressure, including pressure from the Bush administration, forced Israel to drop its objections to Hamas' participation. In retrospect that pressure doesn't look so good. After Fatah and Hamas announced their unity deal earlier this year, Elliott Abrams, who was a member of the administration, recalled:
The last parliamentary elections were held in 2006, and there was a major dispute about whether Hamas should be allowed to run. Abbas then argued strongly and successfully (in that he persuaded Washington to back off) that an election without Hamas would be illegitimate: He would be barring his only real opponent, in the manner of all Arab dictators. We in the Bush administration made the wrong call and sided with Abbas, over Israeli objections. As Condoleezza Rice wrote in her memoirs, “In retrospect, we should have insisted that every party disarm as a condition for participating in the vote.” She was right, for several reasons.
Subsequent developments have shown Israel's objections to having Hamas run in those election to be valid.

Posted by William A. Jacobson on August 07, 2014 8 Comments
I have argued strenuously against the academic boycott of Israel, led by people like Steven Salaita, on a number of grounds. Not the least of those grounds is that academics who insist on violating the academic freedom of Israelis and those who wish to interact with Israelis do damage to the system in its entirety. That is one of the reasons why the American Association of University Professors, numerous university associations, and over 250 University Presidents issued statements opposing the academic boycott of Israel passed by the American Studies Association in December 2013. There is a related point to how academic boycotts have a negative ripple effect. On what ground do the academic boycotters of Israel claim their own academic freedom if they are so quick to deny it to others? Because they think they are right? What if the people who want to boycott the boycotters believe just as firmly in their own correctness? Now you can see why universities reacted so swiftly in rejecting the academic boycott -- it's easy to start, but hard to stop. As posted earlier, Inside Higher Ed reports that Salaita allegedly was denied an offer at U. Illinois at at Urbana-Champaign because of his tweets. I don't know if that's true, if it was the anti-Israeli views expressed in the tweets, or if it was that the tweets arguably presented Salaita as an unhinged and unstable demagogue who would bring disrepute on his institution and intimidate his students; or any or none of the above. Many of those rushing to Salaita's defense on the ground of academic freedom, however, themselves are among the worst violators of academic freedom through the anti-Israel academic boycott. They would turn away a Dean or representative of an Israeli academic institution, would bar joint programs and research, and even cooperation in journal publications.

Posted by William A. Jacobson on August 07, 2014 41 Comments
While over 700 journalists were covering the Gaza conflict, few paid attention to the mass slaughter in Iraq of the Yazidi, who are on the verge of a true genocide at the hands of ISIS. Finally the impending massacre is getting coverage, but it may be too late. The Washington Post reported two days ago:
Stranded on a barren mountaintop, thousands of minority Iraqis are faced with a bleak choice: descend and risk slaughter at the hands of the encircled Sunni extremists or sit tight and risk dying of thirst. Humanitarian agencies said Tuesday that between 10,000 and 40,000 civilians remain trapped on Mount Sinjar since being driven out of surrounding villages and the town of Sinjar two days earlier. But the mountain that had looked like a refuge is becoming a graveyard for their children. Unable to dig deep into the rocky mountainside, displaced families said they have buried young and elderly victims of the harsh conditions in shallow graves, their bodies covered with stones. Iraqi government planes attempted to airdrop bottled water to the mountain on Monday night but reached few of those marooned.... Most of those who fled Sinjar are from the minority Yazidi sect, which melds parts of ancient Zoroastrianism with Christianity and Islam. They are considered by the al-Qaeda-inspired Islamic State to be devil worshippers and apostates.
WaPo updates today:

Posted by William A. Jacobson on August 07, 2014 5 Comments

Equal opportunity...

Posted by Kemberlee Kaye on August 06, 2014 15 Comments
Democratic operative Kathy Groob tweeted a handful of racist tweets about Senator McConnell's wife. Outrage ensued and Groob apologized and then deleted her Twitter account. Fox News reports:

A Democratic operative deleted her Twitter account Monday following a series of what some called racist remarks about Senate Minority Leader Mitch McConnell’s wife, Elaine Chao.

Chao, former U.S. Labor Secretary under President George W. Bush, is Asian.

Kathy Groob, who describes herself as an “advocate for women in politics,” sent a series of tweets related to Chao at a political event Saturday.

According to WKMS, Groob sent the tweets in response to comments McConnell made at the event, in which he referred to his wife as "the only Kentucky woman who served in a president’s cabinet."

Following widespread criticism from her own party, Groob later apologized for her “poor choice of words” and deleted her Twitter account.

The tweets that started it all:

Kathy Groob Tweets Elaine Chao Asian not KY

Posted by New Neo on August 06, 2014 35 Comments
Today is the anniversary of the dropping of the atomic bomb on Hiroshima, with Nagasaki following three days later, and the surrender of Japan on August 15, 1945. To date these two bombs remain---astoundingly enough, considering the nature of our oft-troubled and troubling species---the only nuclear warheads ever detonated over populated areas. Oliver Kamm wrote a while back:
Our side did terrible things to avoid a more terrible outcome. The bomb was a deliverance for American troops, for prisoners and slave labourers, for those dying of hunger and maltreatment throughout the Japanese empire - and for Japan itself. One of Japan's highest wartime officials, Kido Koichi, later testified that in his view the August surrender prevented 20 million Japanese casualties.
This context always needs to be kept in mind when evaluating any "terrible thing"---and there is no question that the dropping of these bombs was a terrible thing. But critics who are bound and determined to portray the West as evil, marauding, bloodthirsty--- whatever the dreadful adjective du jour might be---are bound and determined to either avoid all context, or to change the true context and replace it with fanciful myth. As Kamm writes, those who want to portray Hiroshima and Nagasaki as American crimes cite evidence of an imminent Japanese surrender that would have happened anyway.

Posted by Andrew Branca on August 06, 2014 69 Comments
UPDATE: I've come across video of Wafer's direct testimony under questioning by defense counsel Cheryl Carpenter. Here you go: Today saw the closing arguments of the murder trial of Detroit homeowner Theodore Wafer in the front porch shooting death of Renisha McBride in the early morning hours of November 2, 2013.
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