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Susan Estrich - Rich & guilty or poor & innocent?

"You've got African Americans; you've got Hispanics; you've got a bag full of money. Does that tell you — a light bulb doesn't go off in your head and say, 'This is a drug deal'?"
Sam Ponder, an assistant U.S. attorney in Texas, said that — and successfully convinced a jury to reject the defense that Bongani Charles Calhoun did not realize the road trip he went on involved buying drugs. The jury convicted. Calhoun was sentenced to 15 years for participating in a drug conspiracy. The appeals court affirmed. The Supreme Court declined to hear the case.
Justice Sonia Sotomayor, joined by Justice Stephen Breyer, wrote separately. The two joined in the court's decision not to hear the case, but wanted to "dispel any doubt" that refusing to hear the appeal would "signal our tolerance of a federal prosecutor's racially charged remark. It should not."
So Calhoun goes to prison for 15 years.
Sometimes I ask my students: Would you rather be rich and guilty or poor and innocent? Most of them pick the former because rich people get much better lawyers, not to mention expert investigators, jury consultants and the rest.
The reason the court did not take the case, according to most observers, is not only because the business of the Supreme Court isn't to correct mistakes made below (unless they raise major legal issues of broader application), but also because Calhoun's lawyers did not object when the prosecutor made the comment, nor did they raise it in his appeal to the United States Court of Appeals. As we lawyers say, the objection was not properly preserved. It had not been addressed by any court below. There was no conflict among the circuit courts that the Supreme Court needed to resolve. "Cert denied."
You've heard it on television a million times. Criminal defendants have a right to a lawyer, and if they can't afford one, a lawyer will be appointed to represent them. They must be told that when they are taken into custody, or their statements cannot be used against them.
Even if they talk to police without a lawyer, appointing one is the first step in the judicial process. Under the constitution, you're entitled not simply to the assistance of a person who passed a bar exam; you are entitled to the effective assistance of counsel. Justice, we say, demands no less.
A few years ago, a defendant convicted in a capital case and sentenced to death appealed to the Supreme Court on the grounds that he had been denied the effective assistance of counsel because his lawyer fell asleep (this was uncontested) during the trial. He lost.
Ask anyone who has practiced law, and they will tell you: Some lawyers are better than others. There are some good lawyers at the very bottom of the legal food chain (where lawyers agree to represent indigent defendants for hourly wages that few lawyers in private practice would accept). But there are, as in most things, more good lawyers at the top than at the bottom. The real question is: How low can you go?
The answer, sadly, is very low.
I wish that at some point in my career I'd been a prosecutor. Prosecutors, many of them just a few years out of law school, decide whether a Calhoun will be charged and for what. Supreme Court justices make law. Prosecutors make life-and-death decisions.
Faith in our system requires that the fight between prosecution and defense not necessarily be equal, which it rarely is (rich defendants can often outlawyer the government, and poor defendants almost never do), but that it at least be fair. In Calhoun's case, it wasn't. Pure and simple.
The prosecutor, as Sotomayor put it, "tapped a deep and sorry vein of racial prejudice that has run through the history of criminal justice in our nation." The defense lawyers were too stupid or distracted or disinterested to object. And even so outspoken a defender of racial equality as Sotomayor couldn't right that wrong. Had she not written separately, we probably never would have heard of the case.
It should make you wonder: How many more cases like that are out there?
Take my word for it. Too many.
(Susan Estrich is a professor of Law and Political Science at the University of Southern California Law Center. A best-selling author, lawyer and politician, as well as a teacher, she first gained national prominence as national campaign manager for Dukakis for President in 1988.)

Last Updated on Wednesday, 31 December 1969 07:00

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Froma Harrop - Price-gouging in 'free-market' medicine

When folks pan the Affordable Care Act for being nearly 3,000 pages long, here's a sensible response: It could have been done in a page and a half if it simply declared that Medicare would cover everyone.
The concept of Medicare for All was pushed by a few lonely liberals. And it would have been, ironically, the most conservative approach to bringing down health care costs while maintaining quality.
Medicare bringing down health care costs? "Ha, ha, ha," says the program's foes, citing the spending projections for the government health plan serving older Americans.
Unfortunately, the critics confuse spending levels with costs. Total Medicare spending is bound to rise as more older Americans live longer.
Sure, you can curb that increase through a voucher system limiting how much taxpayers will subsidize each beneficiary. But that's not the same as curbing the cost of treating a heart attack or cancer. Without Medicare's cost controls, the size of the bill for each course of care would be larger. Which is exactly what the medical-industrial complex wants.
A Time magazine piece by Steven Brill is must-reading on this subject. For all the waste and perverse incentives in Medicare, the federal program remains an oasis of cost-control in a desert of price-gouging by medical institutions, many parading around as "nonprofits."
Brill writes of Sean Recchi, a 42-year-old Ohioan with lymphoma. Suffering chills, pains and sweats, he rushed off to the famed MD Anderson Cancer Center in Houston. Anderson wouldn't accept the Recchis' bare-bones insurance plan and required $83,900 upfront for an examination and initial doses of chemotherapy. (His mother-in-law wrote the checks.)
How did the bill get that high? Shameless overcharging. For example, the hospital charged Recchi $283 to have a simple chest X-ray for which Medicare would have paid $20.44. Recchi was billed more than $15,000 for blood and other lab tests. Medicare would have paid only a few hundred for the same thing.
"Why does simple lab work done during a few days in a hospital cost more than a car?" Brill asks rhetorically.
Recchi was charged $13,702 for a round of the cancer drug Rituxan. Researching how much hospitals pay for Rituxan, Brill estimated that Anderson had marked up the price 400 percent. And so on.
Janice S., age 64, felt chest pains and took herself to Stamford Hospital in Connecticut. While there, she was given three troponin tests to measure proteins in the blood. She was charged $199.50 for each troponin test. Had she been a year older and on Medicare, the hospital would have been paid only $13.94 for each test. The heart-attack false alarm ended up costing her $21,000.
Where does all this money end up? In the pockets of hospital administrators, doctors and makers of equipment and drugs on which the medical profession can multiply the markups.
Hospitals gripe that they lose money on Medicare patients, but that isn't true. As Jonathan Blum, deputy administrator of the Centers for Medicare and Medicaid Services, told Brill: "Central Florida is overflowing with Medicare patients, and all those hospitals are expanding and advertising for Medicare patients. So you can't tell me they're losing money."
Many Republicans and some Democrats want to cut Medicare spending by raising the eligibility age. That makes minus-zero sense. If anything, the age should be lowered.
This is not to say that Medicare doesn't waste money. Under current rules, for example, it must cover treatments that work, even when another, cheaper means of care does just as good a job.
But the economics of medicine in the private sector bears little resemblance to a real free market. Hospitals routinely put on a magic show designed to bilk ordinary Americans, especially — and tragically — the underinsured.
(A member of the Providence Journal editorial board, Froma Harrop writes a nationally syndicated column from that city. She has written for such diverse publications as The New York Times, Harper's Bazaar and Institutional Investor.)

Last Updated on Wednesday, 31 December 1969 07:00

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Pat Buchanan - Infantile conservatism

Regularly now, The Washington Post, as always concerned with fairness and balance, runs a blog called "Right Turn: Jennifer Rubin's Take From a Conservative Perspective."
The blog tells us what the Post regards as conservatism.
On Monday, Rubin declared that America's "greatest national security threat is Iran." Do conservatives really believe this?
How is America, with thousands of strategic and tactical nuclear weapons, scores of warships in the Med, Persian Gulf, Arabian Sea and Indian Ocean, bombers and nuclear subs and land-based missiles able to strike and incinerate Iran within half an hour, threatened by Iran?
Iran has no missile that can reach us, no air force or navy that would survive the first days of war, no nuclear weapons, no bomb-grade uranium from which to build one. All of her nuclear facilities are under constant United Nations surveillance and inspection.
And if this Iran is the "greatest national security threat" faced by the world's last superpower, why do Iran's nearest neighbors — Turkey, Iraq, Azerbaijan, Afghanistan, Pakistan — seem so unafraid of her?
Citing The Associated Press and Times of Israel, Rubin warns us that "Iran has picked 16 new locations for nuclear plants." How many nuclear plants does Iran have now? One, Bushehr. Begun by the Germans under the shah, Bushehr was taken over by the Russians in 1995, but not completed for 16 years, until 2011. In their dreams, the Iranians, their economy sinking under U.S. and U.N. sanctions, are going to throw up 16 nuclear plants.
Twice Rubin describes our situation today as "scary."
Remarkable. Our uncles and fathers turned the Empire of the Sun and Third Reich into cinders in four years, and this generation is all wee-weed up over Mahmoud Ahmadinejad.
"For all intents and purposes, (Bibi) Netanyahu is now the West's protector," says Rubin. How so? Because Obama and Chuck Hagel seem to lack the testosterone "to execute a military strike on Iran."
Yet, according to the Christian Science Monitor, Bibi first warned in 1992 that Iran was on course to get the bomb — in three to five years! And still no bomb.
And Bibi has since been prime minister twice. Why has our Lord Protector not manned up and dealt with Iran himself?
Answer: He wants us to do it — and us to take the consequences.
"With regard to Afghanistan, the president is pulling up stakes prematurely," says Rubin.
As we are now in the 12th year of war in Afghanistan, and about to leave thousands of troops behind when we depart in 2014, what is she talking about?
"In Iraq, the absence of U.S. forces on the ground has ushered in a new round of sectarian violence and opened the door for Iran's growing violence."
Where to begin. Shia Iran has influence in Iraq because we invaded Iraq, dethroned Sunni Saddam, disbanded his Sunni-led army that had defeated Iran in an eight-year war and presided over the rise to power of the Iraqi Shia majority that now tilts to Iran.
Today's Iraq is a direct consequence of our war, our invasion, our occupation. That's our crowd in Baghdad, cozying up to Iran.
And the cost of that war to strip Iraq of weapons it did not have? Four thousand five hundred American dead, 35,000 wounded, $1 trillion and 100,000 Iraqi dead. Half a million widows and orphans. A centuries-old Christian community ravaged. And, yes, an Iraq tilting to Iran and descending into sectarian, civil and ethnic war. A disaster of epochal proportions.
But that disaster was not the doing of Barack Obama, but of people of the same semi-hysterical mindset as Ms. Rubin. She writes that for the rest of Obama's term, we "are going to have to rely on France, Israel, our superb (albeit underfunded) military and plain old luck to prevent national security catastrophes."
Is she serious?
Is French Prime Minister Francois Hollande really one of the four pillars of U.S national security now? Is Israel our security blanket, or is it maybe the other way around? And if America spends as much on defense as all other nations combined, and is sheltered behind the world's largest oceans, why should we Americans be as frightened as Rubin appears to be?
Undeniably we face challenges. A debt-deficit crisis that could sink our economy. Al-Qaida in the Maghreb, Africa, Arabia, Iraq and Syria. North Korea's nukes. A clash between China and Japan that drags us in. An unstable Pakistan's nuclear arsenal.
But does Iran, a Shia island in a Sunni sea, a Persian-dominated land where half the population is non-Persian, a country whose major exports, once we get past fossil fuels, are pistachio nuts, carpets and caviar, really pose the greatest national security threat to the world's greatest nation?
We outlasted the evil empire of Lenin and Stalin that held captive a billion people for 45 years of Cold War, and we are frightened by a rickety theocracy ruled by an old ayatollah?
Rubin's blog may be the Post's idea of conservatism. Ronald Reagan wouldn't recognize it.
(Syndicated columnist Pat Buchanan has been a senior advisor to three presidents, twice a candidate for the Republican presidential nomination and the presidential nominee of the Reform Party in 2000. He won the New Hampshire Republican Primary in 1996.)

Last Updated on Wednesday, 31 December 1969 07:00

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Michelle Malkin - Obama out to destroy thousands of good paying jobs

Here's the latest example of head-splitting cognitive dissonance in Washington: President Obama used his State of the Union address to crusade for a revitalized U.S. manufacturing sector. But while he pays lip service to supporting businesses that build their products on American soil, Obama and his left-wing operatives are hell-bent on driving a key sector of the U.S. manufacturing industry six feet under: the American firearms and ammunition industry.
The White House is pushing new government spending to "spur economic growth," protect manufacturing plants and "create good-paying jobs" to help America's middle class. Yet across the country, with aggressive lobbying by the White House itself, Democrats are working to destroy tens of thousands of good-paying jobs and the firms that created them. Assault rhetoric has lasting real-world consequences.
In New York, Democratic Gov. Andrew Cuomo imposed radical, ineffectual gun-grabbing measures that are backfiring in more ways than one. Nearly half a dozen gun companies have now announced that they will no longer sell their products to police in the Empire State. In protest of Cuomo's gun-control regime banning citizens from owning semi-automatic rifles or shotguns because of cosmetic features deemed "military-style," Washington-based Olympic Arms "will no longer be doing business with the State of New York or any governmental entity or employee of such governmental entity within the State of New York."
According to USA Today, other companies including "LaRue Tactical, York Arms, Templar Custom and EFI, as well as sporting-goods retailer Cheaper Than Dirt" have also joined the sales boycott of New York.
Worse news for New York citizens: At least one local manufacturer, the storied Remington Arms Company founded in Ilion, N.Y., in 1816, is in dire financial danger as a result of Cuomo's draconian regulations. The company's innovations in weaponry and ammunition have been used in sporting, self-defense, law enforcement and warfare for two centuries.
Now, as a result of hysteria-induced government pandering, nearly 40 percent of Remington's weapons can no longer be sold to citizens legally. Its small-town plant employs more than 1,300 people in a town of 8,000 and generates revenue of an estimated $400 million from sales in the U.S. and 55 other countries. As an Ilion local official noted, "Remington is not only a major employer, but it's a historic employer. It's been part of our very fiber for 200 years."
And so it is with the rest of the industry. Despite tough economic times, firearms and ammunition companies have created nearly 27,000 well-paying jobs over the past two years alone, according to the National Shooting Sports Foundation. Businesses in the United States that manufacture, distribute and sell firearms, ammunition and hunting equipment employ nearly 100,000 people in the U.S. and generate an additional 110,000-plus jobs in supplier and ancillary industries.
"These are good jobs, paying an average of $46,858 in wages and benefits," the NSSF reports. In addition, "the firearms and ammunition industry was responsible for as much as $31.84 billion in total economic activity in the country ... (and) the industry and its employees pay over $2.07 billion in taxes including property, income and sales based levies."
In my adopted home state of Colorado, where unemployment hovers near 8 percent, nearly a dozen businesses are being forced to consider leaving their home state because of extremist gun-control proposals. Vice President Joe Biden himself leaned on Democratic lawmakers to support an arbitrary 15-round limit on ammunition magazines. So, what have Sheriff Joe and his gun-grabbing pals wrought? Denver-based ammo magazine manufacturer Magpul served notice that it will take its 400 full-time employees and subcontractors somewhere else. Magpul generates some $85 million in spending in the state.
As the Denver Post reported, the privately held company makes an array of consumer products in addition to sales to the military, law enforcement and gun owners. And because Magpul has made a conscientious effort to support other Colorado companies, the ripple effect could reach far beyond the gun industry — including several cutting-edge innovators in the plastics-injection-molding business. One of Magpul's most important contractors, Denver-based Alfred Manufacturing Co., employs 150 residents. It, too, will "relocate part or all of our operations out of state" if Democrat Gov. John Hickenlooper enacts the stringent gun-control regime pushed by Biden and company. The company has already put expansion plans on hold.
Smart lawmakers from Texas, Michigan, Oklahoma, Arizona and South Carolina are now courting Remington away from New York and Magpul away from Colorado. For now, these states can offer business-friendly, Second Amendment-defending climates that support a demonized industry. But how much longer will it be until Obama and the pro-jobs hypocrites on Capitol Hill find new, more nefarious ways to obstruct this innovation-driving, wealth-producing sector of the American economy? Make no mistake: Gun-control demagoguery is a lethal weapon.
(Syndicated columnist Michelle Malkin is the daughter of Filipino Immigrants. She was born in Philadelphia, raised in southern New Jersey and now lives with her husband and daughter in Colorado. Her weekly column is carried by more than 100 newspapers.)

Last Updated on Friday, 22 February 2013 23:45

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Bob Meade - Drip, drip, drip

When did sovereignty become a bad thing? Or undesirable? Or not to be protected? Each of us is sovereign, and our nation and others are sovereign. Sovereign translates to "independent", which is essential to a free people. If our government decides to, essentially, let our national sovereignty lapse, can our individual sovereignty/freedom be far behind?
Who decided to ignore our established boundaries? Who decided not to enforce duly enacted laws? Who decided to start penalizing those who follow the rules and begin rewarding those who don't? Who decided it was okay to court those who violate our immigration rules? It seems like we can fill the page with those questions, but perhaps the most important one is, why have we, the people, allowed it to happen?
It seems like we, the people, are being led like sheep. Instead of following the Constitution, or duly enacted laws, or past precedents of the courts, we nod our heads in acceptance of some commentator's or some politician's feel good suggestions. Who needs a law when what we want to do feels like it's right? Is political correctness the answer to everything?
The essence of management is to prevent things from happening that you don't want to happen. Using our sovereignty example, are you willing to give up your sovereignty, your freedom? Do you think our nation should have open borders and allow any and all people to come in? If you do, should they receive all the benefits of native born citizens? If you answered no to any of those questions, you are thinking like a manager. Now the question becomes, how do you prevent those undesired things from happening?
And what of other things that you don't want to happen. For example, do you want the federal government to continue to assume the powers the Constitution left to the states? Do you believe the government has the right to absolve people, in advance, of their personal responsibility? Do you believe the executive branch has the authority to tell grocery stores they must label extensive dietary information on things like salads or other prepared foods? Even if the deli makes you a sandwich? Do you believe that without enacting a duly passed law, the government should have the ability to put a grocer in jail and/or impose a fine for failing to properly label that salad or sandwich? Do you believe it is not the duty of the government to dictate what food you can eat and drink, that such decisions are yours to make?
These things chip away at our freedoms. We become observers as our sovereignty, our independence gives way to federal dictates. We watch as the Constitution is ignored or bypassed. Our leaders substitute political correctness, feel good decisions, in place of the rigor required to affect change as put forth in the constitutional process. Ad hoc government! And we, the people, ignore the shredding of the documents that placed the power of government in we, the people.
We have not seen our liberties snatched from us in one giant grab. What we have seen, and are undergoing, is more akin to what has been called, Chinese water torture. That is when drops of water are continually dripped on a person's forehead, with the frequency of the drip being varied, sometimes slower, sometimes faster. Such is the case with our liberties, our freedoms, our sovereignty. A continuing drip that gradually takes away what for centuries has been determined to be our unalienable right to life, liberty, and the pursuit of happiness.
The government dictates what children must be fed in their school cafeterias. No matter that substantial amounts of that food is emptied into the trash because the students don't like it and refuse to eat it. And, the government has gone so far as to take away from students the lunches prepared for them by their mothers, because the government decided they didn't have the proper nutritional value. Even soda! The government (NYC Mayor Bloomberg) decided that merchants could not sell carbonated beverages that were more than 16 ounces. How far into our lives, our decisions, will we allow the government to tread?
And we have the government imposing its "humanism" into religious individuals and institutions, not by the passage of a Constitutional Amendment or a duly enacted law, but by allowing cabinet departments to write regulations that are a finger in the eye of the First Amendment. Instead of our unalienable rights being protected by the Bill of Rights, we see the government ignoring the Constitution and our individual sovereignty, and disrespecting the separation of powers and the rigors of the legislative process.
Stop the drip, drip, drip, before it's too late.
(Bob Meade is a resident of Laconia.)

Last Updated on Thursday, 21 February 2013 21:15

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