Archive for October, 2004

Still Bloggin’

Wednesday, October 27th, 2004

I just wanted everyone to know we’re still here, and the blog is still operational. I can’t speak for Fitz, but I really haven’t had a whole lot strike my blogging fancy lately, and have been too busy to blog it even if it had. I’ve been out of town a lot (and and leaving again this weekend), and have been doing more reading of paper than blogs. But, as soon as I can get to it, I do have a few things to talk about, and a few emails to answer. Thanks for dropping by even when we weren’t here.

"Keyes Says Incest Awaits Kids of Gays"

Monday, October 18th, 2004

That’s the headline in this story from the Chicago Sun-Times. In case you don’t remember, Alan Keyes is running for the Senate in Illinois. Apparently, the only way he can make the news is to say stuff like this. His “argument” is that children of gay people won’t know their biological relatives, and thus incest is “inevitable.”

I won’t even hazard a guess at the incredible odds against two people having sex, only to find out they’re related. And I won’t venture into whether it’s better to find out or not. (This reminds me of an urban legend I heard once about a drunk girl at her brother’s frat party, but that’s for another time.)

But by Keyes’s logic, we should ban adoption, too. After all, adopted kids don’t know whether they have biological siblings, and so any sex is potentially incestuous. And even without siblings, there’s always the danger of running into one’s biological mother or father.

I don’t think that’s a reductio ad absurdum, either. That conclusion would be that we should ban all sex, because we can’t know if our parents might have fathered (or mothered) an illegitimate sibling we might end up dating. (Call it the Lone Star theory — oops, sorry for the spoiler.)

My desire to avoid improper electioneering prevents me from saying much more about how I feel about this moron and his argument. I will note that polls from Illinois make it pretty clear we won’t have to worry about a Senator Keyes, though. I’ll let you decide whether that’s good or bad, but my guess is that people who are pro-sex will be relieved.

That’s the way it was and we liked it! We loved it!

Monday, October 11th, 2004

Rufus confesses that in his day they didn’t have a fancy name for “those law students who always need to volunteer an answer, and do so by in a manner that shows off how ‘smart’ they think they are.” We call them gunners, but back then, they just called ‘em assholes. A bunch of guys running around with rabbit skins on their dinks, with rocks for toys, and no special names for their asshole classmates. And that’s the way it was and they liked it! They loved it!

Well times have changed, but asshole law students have not. Every class at every law school has them. That’s not really news to our readers, but Rufus’ stroll down memory lane brought to mind a particular fellow with whom Milbarge and I attended law school. His name was Mark.

Mark – a mustachioed gentleman with an Elvis-inspired coiffure and a snowflake sweater – liked to talk during class. He raised his hand to inflict his personal hypotheticals on his classmates and professors. When his ever-raised hand was not acknowledged, he carried on in a stage whisper while other students asked questions or while the professor lectured. Mark’s running commentary was accompanied by very animated gestures and head movements. It was distracting, to say the least. He was infamous for the constant use of air quotes around commonly used and accepted terms like “the court” or “the plaintiff” or “damages.”

Mark was “unusual.” An older “student” and a “fellow” native Texan, he “often” approached legal “issues” from a unique “perspective.” “Red” “herrings” of his own creation “were” his “specialty.”

One day in a first-year property course, the class discussion involved the concept of chattel – “personal” as opposed to “real” property for the uninitiated. Mark raised his hand and delved into an extended discussion of Texas, ranches, and cows, and how a rancher should be able to prevent the theft of his livestock. Air quotes flew from Mark’s hands like spent shell casings from Rambo’s M-60. After a few painful minutes, the student sitting next to Mark leaned over and whispered (to the delight of all the students in the class), “Mark, that word is ‘chattel,’ not ‘cattle.’” Suddenly, Rambo’s machine gun was out of ammo. For once, Mark was silent. He withdrew his hypothetical, mumbling something incoherent, to which the professor responded, “You can take the boy out Texas, but you can’t take Texas out of the boy.”

That’s as true now as it was in Rufus’ day.

Follow-up on Child Porn and the Commerce Clause

Monday, October 4th, 2004

Since I was called out by Fitz in a recent post, I’ll answer the bell. Fitz linked to (and scooped Bashman on) a recent Eleventh Circuit case vacating a federal child porn conviction because of an insufficient link to interstate commerce. Howard noted the decision here, and Fed. No. 84 discussed it here (subbing for Ken at CrimLaw) and here on his own blog, Crime & Federalism (and see also this follow-up).

Howard suggested that either (a) the prosecutors really screwed up this case, or (b) child porn prosecutions in the Eleventh Circuit are now a dead letter. I don’t think it’s either. My sense, from a brief scan of the opinion, is that the Government went forward with the best it had, but couldn’t, as the saying goes, make chicken salad out of chicken shit. They simply didn’t have any evidence at all that any of the child porn came from out-of-state. And so they relied on the computer disks — manufactured out of state — for the nexus to interstate commerce. The court said, like the Ninth Circuit in a similar case, McCoy (see Fed’s follow-up for more on that one), that this isn’t enough. (The prosecutors in McCoy relied only on the camera used to take pictures.)

Generally, though, there’s going to be something more. Either there will be some proof that the pictures themselves were taken out of state, or there will be evidence of emails and downloading and other uses of the facilities of interstate commerce, or there will be some evidence of economic activity, like purchasing pictures. So, even if this case stands for the proposition that mere possession of child porn isn’t a federal crime (and I don’t think it goes that far), prosecutions are still viable as long as there’s some evidence that the possessor got it from out of state, and it didn’t just magically appear on his computer. Of course, this isn’t legal advice, and I’m not your lawyer. My advice is not to possess child porn at all. Don’t forget that the state can still prosecute, too.

Two final thoughts. First, I didn’t get an indication of this in the opinion, but it’s remotely possible that the Government was, in effect, sandbagging here. I’m reminded of last Term’s Supreme Court case, U.S. v. Flores-Montano. There, the issue was border searches of gas tanks. The Government probably had reasonable suspicion as to the particular car seached, but at trial expressly disclaimed that it had reasonable suspicion, because it wanted to get a ruling that reasonable suspicion wasn’t required. (It got that ruling, too, but it should have also enjoined me from using the term “reasonable suspicion” three times in one sentence.) Otherwise, courts could have simply avoided deciding what level of suspicion was required by assuming the higher standard prevailed and finding that the Government met it anyway. In a similar vein, he Government might have elected not to present certain evidence because it wanted to find out what kind of absolute bare minimum connection to interstate commerce would support a conviction. Now, I don’t think that happened here, if only because child porn cases aren’t the kind that the Justice Department tends to take a dive in. But at some point, the Government elected to go forward with a pretty flimsy tie to interstate commerce, which might mean it was really gung-ho about this, but it might also mean that it was looking for a particular holding.

Finally, note that the Eleventh Circuit will soon hear en banc a challenge to a federal church arson conviction on Commerce Clause grounds. That case, and the upcoming Supreme Court argument in Ashcroft v. Raich, will answer a lot of questions about the scope of federal criminal law vs. the Commerce Clause. Stay tuned.