RI Courts and Attorney General: Taking "A Second Chance" to a New Level

The passage of twenty four hours has conferred no perspective on or fathomability into this:

The state courts plan to keep doing business with two cleaning companies that the Carcieri administration fired last week after 31 of their custodians were arrested as suspected illegal immigrants.

And Attorney General Patrick C. Lynch is also sticking with the one custodian he has left, even though the worker's boss and the president of the company has admitted to ignoring a federal law to keep certain documents on his employees.

In other words, two of the institutions charged with administering our laws and prosecuting crime propose to reward two companies which not only broke the law but broke the law within the physical boundaries of those institutions.

Crime in the Northeast

Is anyone else surprised by State Police Superintendent Brendan Doherty's assessment of the regional crime situation, as reported in today's Projo by Richard Dujardin…

Doherty said he believes [the joint local/state/federal task force operating in Providence] has become necessary now more than ever because “crime in the Northeast is out of control.”

This is the first mention I've heard of a region-wide crime wave; are there other indicators out there pointing in the same direction?

The Communication Breakdown Between Governor and Mayor -- in Illinois

Glenn Reynolds is looking at this as a gun-control story, however, for Rhode Islanders, it serves reminder that tensions between Governors and Mayors can be more than simple partisan politics. …

Gov. Rod Blagojevich (D) on Wednesday raised the possibility of bringing in state troopers or even the Illinois National Guard to help Chicago combat a recent increase in violent crime -- an offer that Mayor Richard Daley(D) didn't know was coming….

Blagojevich said Daley had not asked for help and he had not talked to the mayor about offering it, adding he would call Daley after he met later in the day with the state police, National Guard and others.

Daley's office said the mayor did not know anything about Blagojevich's comments and did not know he was going to make them.

Governor Blagojevich and Mayor Daley are both Democrats.

Sometimes, urban mayors just have different views about what’s important and what’s successful than do statewide officials.

Life as Bobby O

As a writer (lamentably too little of creative works), I find it difficult not to spend some paragraphs indulging in imaginative exercises concerning what the experience of being Bobby Oliveira. Inasmuch as I've no interest in addressing the likely consequences of such an indulgence, I'll offer herewith only a link to his thoughts on his peculiarly timed arrest.

It's enough to say that it makes for interesting reading.

Corruption and a Criminal's Rights

Regardless of the identity of the alleged harasser, I agree with Will that the timing of Bobby Oliveira's arrest is suspicious. I'd even go so far as to suggest that it's reason for concern, given its Rhode Island political context:

The police yesterday picked up School Committee candidate Robert. T. Oliveira on a year-old arrest warrant, charging him with making harassing phone calls to a Tiverton woman who described herself as an ex-girlfriend. ...

Tiverton police obtained the most recent arrest warrant on June 26 of last year after the woman complained to them about more than one call Oliveira allegedly made to her on her cell phone. ...

A Newport patrolman saw Oliveira jogging on Bellevue Avenue in front of The Elms mansion shortly before 8 a.m. yesterday, said Lt. William Fitzgerald. He said the officer believed an arrest for Oliveira was outstanding and, after confirming his belief, stopped Oliveira and took him into custody. Newport turned him over to Tiverton police around 10:30 a.m. ...

Neither Maltais nor Fitzgerald could specify why it took a year for the police to arrest him on a year-old warrant.

"It's not unusual that some period of time will lapse when someone is wanted on a warrant," said Maltais, who wasn't sure exactly how Newport police knew to pick up Oliveira.

Fitzgerald couldn't speak to the Oliveira case, but said that departments communicate with each other, sometimes by phone and sometimes by teletype. The information is related to patrol officers at roll call, but they may learn about warrants from other sources, he said.

Inasmuch as he'd continued to walk the streets unharassed, Bobby presumably did not know that he was a wanted man. Now, in response to some unknown stimulus, a Newport police officer happened to believe that an arrest was pending for a particular jogger, who happened to be notable on the local political stage.

Speaking from personal experience, I'm sure that the woman who filed the complaint did so with sufficiently credible evidence to justify a warrant, but the story still gives the impression that somebody out there in the state could file a report that could sit dormant until such time as an arrest would be particularly inconvenient, no matter the merits of the charge. Shouldn't even criminals have a right to a timely arrest and fair resolution?

Local Candidate Arrested in Newport

Will Ricci of the Ocean State Republican has the scoop on a breaking news story involving a name very familiar in Rhode Island's blogosphere...

Look What Happens When Local And Federal Law Enforcement Work Together

The general public keeps hearing from various quarters that immigration is a federal matter, therefore local police authorities shouldn't take any initiative in enforcing immigration laws.

That refrain brings to mind Amanda Milkovits' story from the Projo of two Saturdays ago…

At dusk, a dozen Providence police officers and state police troopers in unmarked cruisers drove into the back of the Manton Heights housing projects, where the teenage boy killed on Wednesday had lived, and they created a ripple in the neighborhood....

Last night, without public fanfare, the police quietly launched a new street-crime task force –– made up of city and state police, and agents from the FBI –– with the intention of driving down the violent crime rate in the city’s most troubled neighborhoods.

I wonder if the FBI agents assigned to this task force told the Providence Police Department that though they would be riding along with this detail, they would only act in instances where Federal crimes were being observed, because it was up to state and local police to enforce state laws and federal agents to enforce federal laws.

Or is it more likely that the FBI agents offered their full cooperation, to help a fellow law enforcement agency do its job. Wouldn't that be ironic.

Let's Not Forget DuPont

Under Andrew's post "RI Supreme Court Overturns Lead-Paint Verdict", commenter Greg brings up the unwritten agreement - don't call it a "settlement" - by which R.I. Attorney General Patrick Lynch excused DuPont paint from his lawsuit and the potential of a very expensive verdict.

While Attorney General Lynch said of the settlement in July, 2005 that details of exactly how the money will be spent will be worked out later (is it later yet?), the proposal was for $1,000,000 of it to go to Brown University at the specific request of Mr. Lynch. The bulk of the money - $9,000,000 - was to go to a non-profit called the Children's Health Forum. However,

On closer scrutiny, the Children's Health Forum turns out to have extensive ties to the giant chemical company; per the AP, "It was founded by a lawyer hired by DuPont to work on lead poisoning issues; it received most of its funding from the Wilmington, Del.-based company and most of its board members have ties to DuPont."

Possibly some points to raise when, following upon yesterday's verdict by the R.I. Supreme Court, the Attorney General's office starts making "at least we salvaged $12,000,000 from this case" noises.

RI Supreme Court Overturns Lead-Paint Verdict

From Brandie Jefferson of the Projo's 7-to-7 blog...

The Rhode Island Supreme Court today reversed a lower court’s judgments in favor of the state in its suit against companies that manufactured and sold lead paint in Rhode Island.

The court reversed the Superior Court’s decision calling for Millennium Holdings, NL Industries and Sherwin-Williams to participate in an abatement program to clean houses that may have cost the companies upwards of $2.4 billion.

The complete opinion is available online. Here is the court's decision on the central issue, that the case against Millennium Holdings, NL Industries and Sherwin-Williams should have been dismissed...

For the reasons set forth herein, we reverse the judgment of the Superior Court as to the liability of defendants, Millennium, NL, and Sherwin-Williams, because we conclude that the trial justice erred by denying defendants’ motion to dismiss. More specifically, we conclude that the state has not and cannot allege any set of facts to support its public nuisance claim that would establish that defendants interfered with a public right or that defendants were in control of the lead pigment they, or their predecessors, manufactured at the time it caused harm to Rhode Island children.

In reaching this conclusion, we do not mean to minimize the severity of the harm that thousands of children in Rhode Island have suffered as a result of lead poisoning. Our hearts go out to those children whose lives forever have been changed by the poisonous presence of lead. But, however grave the problem of lead poisoning is in Rhode Island, public nuisance law simply does not provide a remedy for this harm. The state has not and cannot allege facts that would fall within the parameters of what would constitute public nuisance under Rhode Island law. As set forth more thoroughly herein, defendants were not in control of any lead pigment at the time the lead caused harm to children in Rhode Island, making defendants unable to abate the alleged nuisance, the standard remedy in a public nuisance action. Furthermore, the General Assembly has recognized defendants’ lack of control and inability to abate the alleged nuisance because it has placed the burden on landlords and property owners to make their properties leadsafe.

Speaking of Disheartening Tiverton Happenings

The behavior is bad enough, but one detail of this story leaves me with a big "huh?":

Two 17-year-old Tiverton High School students have been charged by police and disciplined by the high school, following two separate incidents in which they allegedly broke into a home, stole cash and other items, urinated on a bed, and then two days later threatened the youth who lived there in violation of a no-contact order. ...

The two, accompanied by their parents, turned themselves in Tuesday, May 6, and were charged with breaking and entering, based on confessions, a police spokesman said. Police also said a shoe of one of the two youths matched a shoe print found on the television screen.

The two were arraigned on the breaking and entering charges the next day in Family Court, and a no contact order, prohibiting them from having contact with the victim, was entered.

On Thursday, May 8, however, both youths were charged again for actions against the victim that allegedly took place at school.

Apparently, a couple of days after confessing to this crime, the two were strolling the halls of the high school, enabled to further terrorize their target. Surely a policy change is in order.

Actually, This Might Explain A Lot…

Rhode Island's propensity for showing up on the top of negative lists is moving from the sublime to the ridiculous.

From the Associated Press…

The federal government also released estimates of driving under the influence of illicit drugs. The rates were highest in the District of Columbia, 7 percent; Rhode Island, 6.8 percent; and Massachusetts, 6.4 percent.

A Custody Battle in Texas

The custody hearing over the 416 children removed from the polygamist sect by the State of Texas got off to a hectic start.

A court hearing to decide the fates of hundreds of children seized from a polygamist retreat was off to a chaotic start Thursday as hundreds of lawyers in two different locations demanded to study the first piece of evidence before it could be introduced.

State District Judge Barbara Walther called a recess 40 minutes after the hearing began in what could be the nation's largest child custody case. She wanted to allow the 350 lawyers spread out in two buildings to read the evidence and decide whether to object en masse or make individual objections.

The hearing resumed about an hour later.

The focus of this post is principally the legal issues before Judge Walther. But it is difficult not to make a comment in passing about the sect itself. Legally admissable evidence as to the most horrifying allegation about the sect, the forced marriage and the associative abuse of underage girls, has yet to be brought forth. So we will set that aside for the moment. What we do know is that

Members believe a man must marry at least three wives in order to ascend to heaven.

Women are meanwhile taught that their path to heaven depends on being subservient to their husband.

Commenter Rhody is down on judgmentalism. Am I being judgmental if I say that treating children like trading cards is disgusting?

Additional details on life at the ranch began to emerge as child welfare investigator Angie Voss testified.

She said that if one of the men fell out of favor with the FLDS, his wives and children would be reassigned to other men. The children would then identify the new man as their father. Voss said that contributed to the problem of identifying children's family links and their ages.

And caused the state to ask for genetic testing of the children, a request upon which Judge Walther has not yet ruled.

As to the legal issues to be addressed by this hearing, one of them will not be religion.

"The court is not in the position and certainly does not intend to rule about someone's religious practices and their freedom of religion," said Judge Walther.

The judge herself described the core issue which, of course, is custody.

What I'm trying to get to is whether or not these children should be returned to their parents or whether there's enough information that they need to be retained in the custody of the (child welfare) department

A component of this decision is that

Under Texan law, girls younger than 16 cannot marry, even with parental approval.

* * *

Texas law states that if sexual abuse is happening in a home and a parent does not put a stop to it, then the parent can lose custody of the child.

Marrying off an underage daughter, therefore, would constitute failure to stop sexual abuse of a child.

A slightly exasperated Judge Walther continues.

The real issue we haven't even been able to get to, and the issue is whether or not the court can return these children to their parents. To the extent that you all want to argue about procedure [I'll let you)] but you need to help me focus on what the issue is: Did the department act on evidence in a way that, based on the light of day, is insufficient for the department to continue to be the temporary conservators? This is a continuation of the emergency process and it is designed to have a little looser procedure, so that the parents are not hampered.

An important part of the evidence would potentially be contributed by the 16 year old girl whose call to a family violence shelter led to the raid of the sect. She has not yet been identified, however, and some sect members are saying that she does not exist, which would place the raid and the removal of the children on shaky legal grounds.

One aspect upon which the judge must rule is a little baffling.

One of the judge's tasks is to determine whether or not the ranch constitutes a "home" under state law.

Does this mean that if the ranch was not a home, the parent did no wrong in marrying off an underage daughter?

Gosh, It's Really Here

Andrew outlines the "cons" of legalizing prostitution.

Bringing it back to Rhode Island, it's one thing to be aware in an intellectual vacuum that indoor prostitution is legal here. It's another to read a description of and begin to fully understand that a florishing trade has resulted.

Ed Achorn provides that description:

One does not have to search very hard on Google to discover that the johns who prey on young women are well aware of the state’s innovative approach to the world’s oldest profession. They tout Rhode Island as a land of opportunity, offer crude reviews of the charms and demerits of the “girls” who work in the city’s strip clubs, and share such consumer info as whether strippers provide “takeout service” and how much they charge. Last month, in a Channel 10 I-Team report by Jim Taricani, a young cameraman entered the Club Balloons strip club with a hidden camera. Within minutes, a dancer was offering him, for a price, two forms of sex.

Money pours into the sex industry in Providence, particularly in a booming vice district along Allens Avenue. If Rhode Island has a “center of economic excellence” these days, this is it. Seedy customers from all over New England flock to Providence for the action, and “alternative” newspapers both here and in Boston survive on ads from local ladies (and a few gentlemen) who, to put it mildly, do not go to extreme lengths to disguise what they are selling.

The un-ironic title of this post was my reaction upon reading Achorn's column today. Presumably, it was a naive assumption on my part that a law had not engendered actual businesses.

So. Now I've caught up. It's here and business is apparently brisk.

Should it stay? Ed Achorn, Brad Plumer and others point to repugnant and illegal activity that gravitates towards legalized prostitution - slavery, pedophelia - as well as the self-destructive lifestyle - drug use - it can enable. But shouldn't the question be contemplated solely on its own merits?

"Should it be legal for a consenting adult to sell intimacy to another consenting adult?"

Or is it simply not possible to do so because there can never be a circumstance under which the repugnant and illegal activity can be screened out? And that by saying yes to the above question, one is automatically giving consent to and approval of the other completely unacceptable activity?

What's Wrong with Legalizing Prostitution Keeping Prostitution Legal in Rhode Island, You Ask?

Along with Edward Achorn's Projo op-ed on the state of prostitution in Rhode Island (or maybe that should be on the state of prostitution, Rhode Island), you may want to read this blog item written by Brad Plumer and recommended by Reihan Salam. The post points to a mountain of evidence showing that legalizing prostitution doesn't transform it into just another legitimate business. From Plumer's post…

In 2003, the Scottish government, looking to revamp its own prostitution laws, did a massive report on different policies around the world, and discovered that legalization-plus-regulation comes with its own set of problems.

The study found that, as you'd expect, legalization often led to a dramatic expansion of the sex industry: In Australia, brothels proliferated to the point where they overwhelmed the state's ability to regulate them, and became mired in organized crime and corruption. In many countries, child prostitution and the trafficking of foreign women also increased dramatically. More importantly, surveys found that many sex workers still felt coerced and unsafe even after decriminalization. In the Netherlands—often held up as a model—a survey done in 2000 found that 79 percent of prostitutes were in the sex business "due to some degree of force."

And from one of Plumer's links to an old Insight on the News article …

Yet wherever there is regulated prostitution, it is matched by a flourishing black market. Despite the fact that prostitution is legal in 12 Nevada counties, prostitutes continue to work illegally in casinos to avoid the isolation and control of the legal brothels. Even the legal brothels maintain a business link with the illegal pimping circuit by paying a finder's fee to pimps for bringing in new women.

Station Club Fire: Michael Derderian Applies for Parole

After pleading no contest to 100 counts of involuntary manslaughter and serving one third of his four year sentence, co-owner of the Station Night Club Michael Derderian, has applied for parole.

One of the one hundred people killed in the fire was Nicholas O’Neill. Below is the statement of his parents, Joanne O’Neill and Dave Kane, to the Rhode Island Parole Board.

We, the parents of Nicholas P. O’Neill the youngest victim of the Station Nightclub fire, are writing to you to express our objections to the parole of Michael Derderian. In the period following this tragedy, facts in evidence presented to the Grand Jury have shown clearly that it was Mr. Derderian’s continuing self-interested decisions that were the chief cause of this horrible event. It was Mr. Derderian’s choice to ignore the laws pertaining to fire safety and capacity and his ability to convince city officials to assist him that was responsible for the dangerous and life ending environment that existed at the Station Nightclub.

It is important for the Parole Board to be clearly aware that Michael Derderian just doesn’t get it. He has always been about himself. He has constantly shown an attitude that the rules, regardless of whom they are meant to protect, just don’t apply to him. He has been found guilty of ignoring State law regarding Workmen’s Compensation. These were laws that would have assisted people he refers to and ‘friends’ and ‘family’. He certainly showed even less concern for the laws that would have protected the ‘strangers’ who came into his treacherous fire trap.

In addition to this, Mr. Derderian was obviously unconcerned with laws pertaining to underage drinking. We were recently informed by Nicky’s oldest brother, Christian, that Michael Derderian had on several occasions offered and indeed encouraged my 18 year old son Nicholas to ‘have a drink’. Nicky, who never drank, smoked or did any kind of drugs, declined these offers.

If this weren’t enough, Mr. Derderian’s disregard for rules and regulations has continued even while incarcerated. After receiving a stunning plea bargain, a Judge who was either incompetent or corrupt, immediately granted this man the privilege of being part of the Work Release program. However, Mr. Derderian promptly lost this unearned reward due to his inability to obey these rules. He was promptly returned to the general prison population for flaunting his disregard for the regulations relating to contraband.

Obviously, being found responsible for the deaths of 100 people, the injuring of 200 more, and the fact that he was now behind bars and in prison garb, have all failed to impress upon this man that the rules are also for Michael Derderian.

For these reason and many more, we the family of Nicholas P. O’Neill fervently plead with the Parole Board to deny Michael Derderian’s partition for parole.

A Pipe Bomb in a Nuke Plant (almost)

Question for anyone who drives a pickup truck. Would a pipe bomb in the back of your truck escape your attention as you drove to work? Overreaching for an explanation now, how if someone dropped it in while you were stopped at a red light?

The Palo Verde nuclear power plant, the largest in the United States, was sealed off for much of Friday after guards found a pipe bomb in a worker's truck as he tried to enter the facility, officials said. ...

The pipe bomb was probably powerful enough to damage the vehicle but not the power plant, Sheriff Joe Arpaio said.

The engineer, identified as Roger Hurd, 61, of South Carolina, told investigators he was unaware the pipe bomb was in the bed of his pickup truck, the sheriff said.

"The mystery is how did it get in the truck and how he knew nothing about it. It's all very puzzling," Arpaio told Reuters, adding that a search of Hurd's Phoenix-area apartment turned up no clues. "There was nothing there that would connect him to the pipe bomb."

Re: Update: The Death of Edimar de Araujo

And the winner of this year's Alinsky award for staying on-message, no matter what facts, common sense and common decency all indicate, is Ali Noorani, the executive director of the Massachusetts Immigrant & Refugee Advocacy Coalition. Mr. Noorani receives this award for his quote appearing in Amanda Milkovits' and Karen Lee Ziner's story in today's Projo, following yesterday's revelation that the death of Edimar de Araujo was caused by a combination of cocaine and anti-anxiety medication...

"At the end of the day, a person died because they were an undocumented immigrant,” he said yesterday.

“How much money, time and emotional drama would have been saved if we had a functioning immigration system?” he said.

How exactly does Mr. Noorani believe that the combination of chemicals in Mr. Araujo's system at the time of his death related to his immigration status?

Update: The Death of Edimar de Araujo

Dr. Thomas P. Gilson, Rhode Island's Chief Medical Examiner, has just issued a press release as to the cause of Mr. Araujo's death:

"The cause of death for Edimar Alves De Araujo, a 34-year-old male from Milford, MA, who expired in Providence, RI, on August 7, 2007, after Federal Immigration agents took him into custody, has been determined to be acute intoxication due to the combined effects of cocaine and hydroxyzine (a medication used for the treatment of anxiety and emesis) with chronic seizure disorder as another significant condition contributing to death."

At the time of Mr. Araujo's tragic death, Ali Noorani, Executive Director of the Massachusetts Immigrant & Refugee Advocacy Coalition, stated, “I think everybody is waiting to see how this tragedy really occurred”. With the Medical Examiner's report, more of the picture has been filled in.

It is difficult to get away from the point Carroll Andrew Morse made in his original Anchor Rising post:

"From what we know, anyone with Mr. Araujo's medical condition -- citizen or non-citizen -- could have suffered the same unfotunate fate, if discovered to be the subject of an outstanding warrant following a traffic stop."

A Misplaced Focus

The case of the contaminated soil a Tiverton neighborhood just down the hill from me is beginning to exemplify everything that is wrong with our current mix of government ubiquity and the cultural knee-jerk reaction to litigate:

Fiscal woes notwithstanding, the DEM went into the red in the fiscal year that ended in June to pay a Washington law firm nearly $1.1 million to buttress its own five lawyers as it tries to force the Texas-based utility Southern Union to clean up the soil.

Five years after the toxic wastes were discovered and two years after the DEM first called on Southern Union for remediation plans, there is no end in sight to a highly contentious legal battle.

Roger Williams University Law Professor Jared Goldstein has suggested that we might as well make those expenses permanent and "hire eight or nine staff lawyers at $100,000 a year" plus "supporting staff." DEM Director Michael Sullivan complains that the ability of the energy company to simply outspend Rhode Island in the courthouse is "fundamentally unfair to the citizens of the entire state."

I'd suggest that what's fundamentally unfair is a system that gets mired in expensive legally wrangling with the goal of assigning blame and finding somebody else to pay for the horrible remnants of our ignorant past. The article contains hints that there could be another approach:

Southern Union initially cooperated with the DEM in conducting two site investigations of the contaminated area.

But since residents filed a civil suit seeking unspecified damages in 2005, Southern Union has insisted it is not responsible and claims the DEM’s own regulations do not require Southern Union to submit remediation plans.

The parallels between homeowners who unknowingly bought contaminated land and a distant company that unknowingly bought another business with a contaminated history suggest, to me, that a culture that encouraged shared efforts toward remediation of mutual misfortune would be to everybody's benefit. The search for big pockets seems to come around somehow to costing everybody else money.

The Death of Edimar de Araujo

Nobody should die as the result of a traffic stop. But the timeline of events leading to the unfortunate death of Edimar Alves de Araujo while in Federal custody, as assembled from witness testimony and audio/visual evidence provided by the Woonsocket Police and Providence Fire Departments, points to a tragedy that was sudden and unforeseeable, not the result of neglect or cruelty.

Karen Lee Ziner has an update on the investigation into Mr. Araujo's death in today's Projo, including pictures taken from surveillance video and recordings of several emergency calls that were made.

Two points worth adding to the Projo's coverage...

1. The stomach-turning attempts by immigration activists to advance a political agenda using Mr. Araujo's death make no real sense…

“I think everybody is waiting to see how this tragedy really occurred,” said Ali Noorani, executive director of the Massachusetts Immigrant & Refugee Advocacy Coalition, a group that demanded answers at the outset.

“At the end of the day, somebody died because they were an undocumented immigrant who was detained,” said Noorani. “Those are the facts that we know.”

From what we know, anyone with Mr. Araujo's medical condition -- citizen or non-citizen -- could have suffered the same unfotunate fate, if discovered to be the subject of an outstanding warrant following a traffic stop. Mr Araujo's immigration status is only relevant to his death while in custody to the extent that the United States (or any society) enforces any system of laws at all.

2. There had been initial reports that the Woonsocket Police department, for unknown but probably not good reasons, refused to provide Mr. Araujo with medication he needed. Here's what the Boston Globe reported on August 9…

Edmar Alves Araujo, 34, of Milford, called his sister to say he had been detained by local police after a traffic stop. Irene Araujo said she immediately brought his medication, Gardenal, to Woonsocket police headquarters, where he was being held, only to be turned away by officers who refused to accept it.

"I told them he needed the medication, and I told them he had seizure problems," Irene Araujo said yesterday. "He can't skip a day without medication."

Today's report from Ms. Ziner reminds us that this version of events was quickly debunked...

Randy Olen, a Providence lawyer who represents the family, said the case “represents a tragedy that should have and could have been avoided.” Olen said the family maintains that authorities “were put on notice that Mr. Araujo required life-sustaining medication, and the information was not acted upon, and that the failure to do so may have led to his death.”

Mr. Olen made this distinction that it was "information" and not "medication" brought to the Woonsocket police as early as August 11. Between the statement of Araujo family's lawyer and what can be observed from the audio/visual evidence that has been released, there is nothing to support a claim that either Woonsocket Police or Federal authorities denied any medication that was otherwise readily available to Mr. Araujo.

Senator Montalbano's Flawed Defense, Part 2

Senate President Joseph Montalbano's claim of immunity from four Rhode Island Ethics Commission charges directly involving his Senate votes is based on a supposedly expansive view of speech-in-debate immunity recognized by the U.S. Supreme Court in the case of United States v. Brewster…

It is beyond doubt that the Speech or Debate Clause protects against inquiry into acts that occur in the regular course of the legislative process, and into the motivation for those acts.

The true scope of the Brewster ruling, however, cannot be inferred from this single sentence. Before applying a Constitutional immunity to everything considered to be part of a regular legislative process, the Court carefully limited the future application of its decision...

• First, by noting that the ruling was limited to certain types of laws,
• Then, by expressly declining to extend speech or debate immunity to laws narrowly constructed to regulate the conduct of legislators.

This exception is obviously relevant to the Ethics Commission charges against Senator Montalbano.

The Brewster decision drew upon the 1966 U.S. Supreme Court case of United States v. Johnson, where the Court recognized that speech or debate immunity could be applied differently to different kinds of laws. One set of applications was to "general criminal statutes", i.e. to laws that apply [nominally] to everyone. Here, legislative immunity was to be interpreted broadly, the classic example being the well-established immunity that legislators have from general laws against slander for anything said during legislative debate.

However, the Court in Johnson also made clear that immunity from general criminal laws did not imply immunity from all laws, expressly refusing to extend speech or debate immunity to the subset of laws specifically intended to regulate legislative conduct…

We emphasize that our holding is limited to prosecutions involving circumstances such as those presented in the case before us. Our decision does not touch a prosecution which, though as here founded on a criminal statute of general application, does not draw in question the legislative acts of the defendant member of Congress or his motives for performing them. And, without intimating any view thereon, we expressly leave open for consideration when the case arises a prosecution which, though possibly entailing inquiry into legislative acts or motivations, is founded upon a narrowly drawn statute passed by Congress in the exercise of its legislative power to regulate the conduct of its members.

Though not central to the matter being decided, the Supreme Court reaffirmed the Johnson distinction in its Brewster decision…

The [Johnson] opinion specifically left open the question of a prosecution which, though possibly entailing some reference to legislative acts, is founded upon a "narrowly drawn" statute passed by Congress in the exercise of its power to regulate its Members' conduct.

Since Senator Montalbano has been charged under a narrowly drawn constitutional grant of authority intended to regulate the conduct of legislators, any broad interpretation of speech-in-debate immunity derived from the Brewster precedent and rulings that follow do not apply to his case.

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There is a second problem with applying the Brewster precedent to Senator Montalbano's ethics case. The explicit language of the Constitution talks about protecting the speech and debate of legislators. But is it a cut-and-dry matter that voting is really part of “debate”? In the Johnson case, this issue was not central because the defendant was charged with making a floor-speech in return for money. Still, the question remains: does it automatically follow that if a legislator cannot be prosecuted for selling his oratorical skills, he also cannot be prosecuted for selling his vote?

In Federal case history, the extension of speech or debate immunity to the act of voting dates back to the 1880 Supreme Court case of Kilbourn v. Thompson. Here, the Court introduced a broad reading of the scope of speech or debate immunity into Federal law, directly quoting an interpretation taken from the 1808 Massachusetts case of Coffin v. Coffin…

These privileges are thus secured, not with the intention of protecting the members against prosecutions for their own benefit, but to support the rights of the people, by enabling their representatives to execute the functions of their office without fear of prosecutions, civil or criminal. I therefore think that the article ought not to be construed strictly, but liberally, that the full design of it may be answered. I will not confine it to delivering an opinion, uttering a speech, or haranguing in debate; but will extend it to the giving of a vote, to the making of a written report, and to every other act resulting from the nature, and in the execution, of the office: and I would define the article, as securing to every member exemption from prosecution, for every thing said or done by him, as a representative, in the exercise of the functions of that office; without enquiring whether the exercise was regular according to the rules of the house, or irregular and against their rules. I do not confine the member to his place in the house; and I am satisfied that there are cases, in which he is entitled to this privilege, when not within the walls of the representatives' chamber.

Again, however, the case being decided concerned immunity from a general statute (Kilbourn was suing legislators who had voted to have him arrested on contempt of Congress charges), not from a law specifically regulating legislator conduct. Today, the scope of the Kilbourn ruling must be viewed in the light of the Court's opinion in Johnson, re-affirmed by Brewster. While the Kilbourn precedent makes clear that speech or debate immunity protects legislators from being prosecuted for the act of casting ethically challenged votes under general criminal statutes, that same scope of immunity does not necessarily extend to laws narrowly constructed to regulate legislative behavior.

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Because of the clear limits established by the Supreme Court in United States v. Johnson and United States v. Brewster, the existing interpretation of Constitutional "speech or debate" provisions grants legislators no automatic immunity from ethics laws expressly intended to regulate their conduct. Thus, in asking for the ethics charges related to his Senate votes to be thrown out on the basis of Rhode Island's speech-in-debate clause, Senator Montalbano is not asking for the courts to apply an existing precedent. Rather, he is asking the courts expand immunity for legislators into a realm where it does not currently exist and, ultimately, for the courts to overrule the plain meaning of the Rhode Island Constitution and create a brand-new legal principle that a blanket immunity from ethics laws is necessary for legislatures to carry out their function.

Rhode Island Lawyers Versus Iranian Terrorism

The Bloomberg wire service is carrying this terrorism-related legal story that has a Rhode Island connection…

The Iranian government must designate an official to answer questions under oath from a lawyer seeking to seize Persian artifacts in the U.S. on behalf of victims of a 1997 Jerusalem terror bombing, a judge ruled.

A lawyer for nine of the victims is trying to enforce a $409 million default judgment obtained against Iran four years ago that made the nation legally responsible for training the bombers.

``The Iranian government is going to have to comply with the rules of this court instead of trying to interpose delay and stymie the process,'' plaintiffs' lawyer David Strachman said yesterday in a phone interview. ``They have to comply with the rule of law.''

Iran hired U.S. lawyers last year to fend off Strachman's efforts to enforce the judgment by seizing and selling Persian antiquities in the possession of the University of Chicago and the city's Field Museum.

Iran's lawyer, Thomas Corcoran Jr., has argued that the antiquities, about 300 clay tablets from the Persian Empire estimated to be 2,500 years old, are protected by the federal Foreign Sovereigns Immunity Act.

The Rhode Island connection is Mr. Strachman, a partner at the local law firm of McIntyre, Tate and Lynch. (The Lynch is William J. Lynch, who also happens to be the chair of Rhode Island’s Democratic Party.)

Author Daniel Pipes has more detail on the facts of the case at his weblog.…

After suicide bombers set off bombs in the Ben Yehuda mall in Jerusalem in 1997, killing five and wounding 192, Hamas claimed responsibility for the attack. Several of those wounded were Americans; with the assistance of Providence, R.I. lawyer David J. Strachman, five of them subsequently filed a federal lawsuit against Iran and Iranian officials (Jenny Rubin, et al vs. the Islamic Republic of Iran, et al.) on the basis of Iran's having financed Hamas, which made Tehran legally responsible for the actions of Hamas. The judge in this case, Ricardo M. Urbina, noted that Iran budgets "between $50 million and $100 million a year sponsoring various organizations such as Hamas."

But the Iranian regime would have nothing to do with the case and boycotted the proceedings. The plaintiffs won by showing that the bomb maker in this attack, Mahmoud Abu Hanoud, had been trained by Iranian agents, and they won monumental damages totaling $423.5 million.

How to collect? Ever creative, Strachman, targeted some 20,000 antique clay tablets of Persepolis, dating from about 553 B.C.-330 B.C., the oldest Persian tablets with alphabetical inscriptions. These have been housed in Chicago since as far back as the 1930s, at the University of Chicago and the Field Museum and Strachman claimed them on the grounds that the university had acknowledged that they rightfully belonged to Iran.

And this is not the first terrorism case that Mr. Strachman has been involved in. He also helped win a $116 million dollar judgement against the Hamas organization. As the Boston Globe reported in January of 2004…

A Rhode Island federal judge has ordered the Palestinian militant group Hamas to pay $116 million to the family of an Israeli couple gunned down by terrorists in Israel...

"What it means is that private individuals can utilize the legal system to join the international fight against terrorism," said David J. Strachman, the lawyer representing the family of Yaron and Efrat Ungar. "It empowers the victims."

Hamas gunmen sprayed the Israeli couple's car with bullets in 1996 on the road near the Israeli city of Beit Shemesh. Three Hamas militants went to jail for the killings, but their families sought to hold the group's leadership responsible, as well.

The families became the first to file a lawsuit under a law Congress passed in 1991 allowing suits in US courts against foreign terrorist organizations. Their victory allows them to try to seize Hamas assets on US soil.

So, despite the new ad that Justin pointed out earlier today, never let be said that Anchor Rising fails to give positive coverage to trial lawyers when it's appropriate!

Have We Lost Our Minds?

Have we lost our minds? In McMinnville OR, two middle school boys have been charged with five counts of felony sexual abuse after being observed swatting some of their female classmates on the butt. They were arrested and jailed. The District Attorney, Bradley Berry, has pledged to have the two boys registered for life as sex offenders. Mark Steyn has the story here

This is just plain nuts. It’s an example of PC run amok. We have lost the ability to make distinctions. The boys need to learn some manners, but this is ridiculous.

I certainly hope the statute of limitations applies to cases like this. I must confess that when I was in 8th grade in Fallbrook, CA, the way we impressed the members of the fair sex with our charm was to snap the bras of girls sitting in front of us on the bus. Oh it was great fun. We were very funny boys. The way we learned that this was not appropriate behavior was when one of the girls, tiring of the adolescent game, smacked one of us. Of course, under today’s rules, she would be standing in court right beside the male sex offener, charged with assault.

For those of you who listen to country music, there is a recent song that gets to the heart of some of today’s silliness. It by Bucky Covington and is entitled “A Different Life.”

We were born to mothers who smoked and drank
Our cribs were covered in lead-based paint
No childproof lids
No seatbelts in cars
Rode bikes with no helmets
and still here we are
Still here we are

We got daddy's belt when we misbehaved
Had three TV channels you got up to change
No video games and no satellite
All we had were friends and they were outside
Playing outside

It was a different life
When we were boys and girls
Not just a different time
It was a different world

School always started the same everyday
the pledge of allegiance, then someone would pray
not every kid made the team when they tried
We got disappointed but that was alright
We turned out alright

It was a different life
When we were boys and girls
Not just a different time
It was a different world

No bottled water
We'd drink from a garden hose
And every Sunday,
All the stores were closed.

It was a different life
When we were boys and girls
Not just a different time
It was a different world

It was a different life
When we were boys and girls
Not just a different time
It was a different world

It was a different world

Senator Montalbano’s Lawyer to Public: My Client’s Conflicts of Interest Are None of Your Business

This one is cute. The lawyer for Senate President Joseph Montalbano is arguing that requiring public officials to file any mandatory conflict of interest disclosure is unconstitutional. From W. Zachary Malinowski in today's Projo…

[Max Wistow] has said that Montalbano’s failure to disclose the income was inadvertent, and he has raised several defenses against the other charges, including the assertion that the mandatory filing of disclosures of potential conflict of interest amounts to self-incrimination.

Senator Montalbano is the subject of eight ethics commission complaints.

Campaign finance reform laws have been upheld by the U.S. Supreme Court on the grounds that the government has a compelling interest in preventing “the appearance of corruption”. It will be interesting see if the political class is able to twist the law to protect a “right” of politicians to hide their conflicts-of-interest at the same time they've used it to limit the free speech rights of regular citizens.

And one other thing: if the best defense Mr. Wistow has is trying to suppress the evidence of Senator Montalbano’s conflict-of-interest problem, doesn’t that mean the evidence must be pretty strong?

State Department of Transportation to be Investigated by State Police

Governor Donald Carcieri has asked the state police to begin an investigation into the state’s Department of Transportation contract staffing practices. From Mike Stanton and Katherine Gregg in today’s Projo…

Governor Carcieri yesterday asked the state police to “begin a preliminary review” of the way business has been conducted by the state Department of Transportation…

Bottom line: the now-infamous $102,858 typist was not an isolated case.

And the 145.99-percent markup the DOT was paying Vanasse Hangen Brustlin to provide that typist to an in-house traffic-monitoring center was by no means the highest of the “overhead” rates the DOT has been paying its consultants.

Responding to a public-information request filed a month ago, the DOT earlier this week acknowledged paying “overhead” rates that add anywhere from 65.94 percent to 210 percent to the bills it has been paying private companies for their staff engineers, draftsmen, technicians and typists.

With pay levels averaging $84.73 an hour (including the guaranteed overhead and profit payments), the state, for example, is paying one consulting company — in the middle of the pack — the equivalent of $176,238 a year for each of the engineers and technicians doing wind and traffic studies on a Pawtucket bridge.

One of the highest overhead rates, 201 percent, goes to Plangraphics, a Frankfurt, Ky., company that billed the state for what is broadly described in DOT records as a “plan library archival numbering system.”

The way the Plangraphics contract worked: the company would bill the DOT $260,656 for its direct labor costs and then, more than twice that — $549,203 — for overhead and $90,613 on top of that for profit. (For reasons that went unexplained yesterday, a $76,260 slice of the company’s $900,473 authorized contract went to the DOT’s construction-scheduling consultant, the Plexus Corp.)

One of the lowest rates, 65.94 percent, goes to Cataldo & Associates, the company that made headlines earlier this year for putting 11 retired DOT construction supervisors on its payroll doing the same kind of work they had been doing on state road projects — while drawing pensions. That practice was eventually nixed by the state retirement board.

At least we now have a plausible answer as to why the percentage of Rhode Island’s bridges that are "functionally obsolete or structurally deficient” is one of the highest in the country.

An Aside on the Hazards of Comparing International Statistics

"Tom Paine" takes the Brits to task for their "smug" and "gleeful" take on the recent Virginia Tech massacre. He also makes this acute observation about comparing British and American homicide rates:

Britain's only statistical advantage in the field of crime is that our homicide rate is lower. That's largely because we only count convictions, not unsolved crimes or those plea-bargained down to something else. America counts all reported offences, including those that turn out to be justifiable homicides (e.g. self-defence). In our statistics, we would (at best) have counted the V-Tech killings as a single murder. We might not actually show them at all, if they were found to have been committed by a mentally-disturbed person (see Home Office Statistical Bulletin 02/07). America's statistics reflect the total number of victims.

We know that there are lies, damn lies and statistics and we should keep in mind that the axiom is applicable internationally, too.

A Plea to Virginia Tech Officials for Better Clarity

Our prayers go out to the victims of yesterday’s Virginia Tech shootings.

No political commentary here, obviously. But what purpose is being served by investigators' seeming coyness about admitting whether there is the possibility of a second shooter or not…

Virginia Tech's president said Tuesday that a student was the gunman in at least the second of the two campus attacks that claimed 33 lives to become the deadliest shooting rampage in modern U.S. history.

Though he did not explicitly say the student was also the gunman in the first shooting, he said he did not believe there was another shooter at large.

UPDATE:

According to ABC News, Virginia Tech President Charles Steger has confirmed the possibility of a second shooter...

Virginia Tech President Charles Steger told "Good Morning America's" Diane Sawyer this morning that there was still the possibility that there were two shooters in the separate campus attacks on Monday morning.

UPDATE 2:

Again, from ABC News...

At this time, police are not looking for a second shooter, however, they did not rule out the possibility that an accomplice may have been involved.

Accelerating Turnover... and Overturn?

Speaking of proposals with gaping holes, if not blatant contradictions, in their reasoning, "key lawmakers and other major players in the state's law and order community" offered Governor Carcieri some suggestions as to how he might free up some space in the ACI as part of attempts to decrease the state government's deficit. Apparently:

31 percent of released prisoners are reincarcerated within a year, a rate that is 10 percent higher than the national average. Within three years, the number that return to the ACI is 50 percent.

Yet, every single one of the proposals that the Providence Journal reports focuses on making it easier for inmates to get out and harder for them to get back in, including this gem:

Target probation supervision to the first 12 months after release, when people are most likely to reoffend, and limit felony probation — which can now extend over 10 years or more — to 3 years "except for offenses punishable by life imprisonment." Estimate: 27 fewer inmates.

If I'm reading this correctly, 27 incarcerated criminals would not currently be in prison under the proposed rules because they would have gotten away with crimes committed after their supervision ended or would have been sentenced with no consideration of their previous records, after probation ended. This strikes me as nearly the reverse of an effective focus.

Why is not a single proposal from these important folks in the "law and order community" targeted at making ex-cons more wary of doing things that might land them back in prison? If Rhode Island's reincarceration rate is 10% higher than the national average, I can assure you that it is not because we make it too difficult for convicts to get out from behind the bars.

ACLU et al: Stop Profiling...and by the way, Don't Enforce Immigration Laws

H 5237, promoted by the ACLU and the Rhode Island Civil Rights Roundtable and sponsored by Reps. Almeida, Diaz, Ajello, Handy, and Slater, will create the "Immigration Status Protection Act" and change the "Racial Profiling Prevention Act" of 2004. It is a true gem of self-contradiction. But I'll get to that.

First, though, as the ProJo reports (Amanda Milkovits), the hearing on this bill revealed that the police feel as if they've been double-crossed and aren't going to simply grin and bear it.

For years, local police chiefs and civil-rights activists have worked together on efforts to combat racial profiling. But in January, civil-rights leaders decided on their own to pursue legislation.

Among its key points, the bill would ban “pretext” traffic stops, forbid the police from searching juveniles without consent and ban the police from asking people about their immigration status except in extremely limited circumstances. The bill also would prevent the police from asking for passengers’ identification during routine traffic stops.

The Rhode Island Police Chiefs Association says many of the bill’s measures would severely handicap police officers from properly doing their jobs. After weeks of trying to negotiate a compromise, the association has given up, calling the bill “a deal-breaker.”

The chiefs also say the bill flies in the face of federal law and rulings by the U.S. Supreme Court, and upsets the delicate balance between civil rights and public safety.

...McCartney, the Warwick police chief, said the chiefs association was blind-sided by the bill and ACLU report. After the bill was submitted, the Civil Rights Roundtable invited the police chiefs to negotiate. The chiefs declared an impasse after two months. “I told them at the third session, ‘You’ve put us in the position of being the bad guys and naysayers, but you people changed the playing field,’ ” McCartney said.

So, as if the contentiousness surrounding the profiling issue wasn't enough, the sponsors of the bill decided to also throw in some guidelines severely restricting the ability of police to identify and detain illegal immigrants. Or did they. I don't really know. You read this section of the bill and try to figure it out:

In section 12-28.1-2 of the bill, it states:

No state or local law enforcement officer or agency shall inquire of an individual, or seek documentation from him or her, about his or her immigration status, unless otherwise required by federal law or court order, or necessary to verify the immigration status of a person who is arrested for a felony and the officer or agency has reasonable grounds to believe that the person's status is in violation of immigration laws; provided, however, an arrestee's race, color, ethnicity or national origin shall not constitute reasonable grounds.
(b) No law enforcement officer shall use an arrest or criminal charge as a pretext for verifying the immigration status of a person.

And section 12-28.1-3

No law enforcement agency of the state of Rhode Island or of any political subdivision shall use agency funds, equipment or personnel for the purpose of detecting or apprehending persons whose only violation or alleged violation of law is that they are persons of foreign citizenship who are in violation of federal immigration laws.

OK, that means no RI funds, which doesn't exclude federal funds...but then

No law enforcement agency of the state of Rhode Island or of any political subdivision shall enter into an agreement with the federal government to assist in the enforcement of federal immigration law pursuant to 8 U.S.C. section 1357(g) or any similar federal program.

The reference to 8 U.S.C. section 1357(g) is key because therein lies the ability of the Federal Government to make the type of deal with the State that this bill is trying to negate. In other words, they want to make it illegal for the State of Rhode Island to be able to make such a deal with the Federal Government. "Amnesty State" anyone? But back to the confusion...the real kicker, from section 12-28.1-5

Nothing in this chapter shall be construed to prohibit any state or local law enforcement officer or employee from cooperating with federal immigration authorities as required by federal law.

Whaaa...? I'm not a lawyer, but...

Finally, there is this bit of self-interested law making on the part of the organizations (and lawyers) that are "looking out" for these constituents:

(a) Any individual who alleges a violation of section 12-28.1-2 may file a civil action for damages and any appropriate and equitable relief in superior court. The court may allow a prevailing plaintiff reasonable attorneys' fees as part of the costs. (b) An organization chartered for the purpose of combating discrimination, racism or of safeguarding civil liberties, or of promoting full, free or equal employment opportunities, may seek appropriate relief in a civil action against any police department for violating section 12-33 28.1-3, and may be awarded its costs, including attorneys' fees, for bringing such an action.

Wow.