Posts Tagged ‘Supreme Court’

THE CORROBORATION CONUNDRUM

In February 1942, the notorious gangster Benjamin “Bugsy” Siegel went on trial in Los Angeles for the 1939 murder of fellow mobster Harry “Big Greenie” Greenberg. One of the killers, Allie Tannenbaum, agreed to cooperate. However, District Attorney John F. Dockweiler faced a problem.

California law demanded corroboration by a second witness. The state had that witness: Abe “Kid Twist” Reles, a feared hit man for New York’s Murder, Inc. (Yes, there once were a lot of vicious Jewish gangsters.) Before the trial, the New York Police Department stashed Reles away under 24-hour guard at Coney Island’s Half Moon Hotel. Somehow, the canary flew out the sixth-story window. Lacking wings, he was unable to reach L.A. to sing.

No mob historian would exonerate Bugsy Siegel (a character in the new novel I’m writing). But the requirement for corroboration—or hard evidence—handcuffed Judge A.A. Scott. He dismissed the case.

The recent Senate Judiciary Committee hearing—not a trial—on now-Supreme Court Justice Brett Kavanaugh brings the Siegel trial to mind. Dr. Christine Blasey Ford testified under oath that as a teenager, she’d been sexually assaulted by a drunken teen-age Brett Kavanaugh. The charges came late in the day, and the committee reassembled to probe the matter. The hearing seemed awkward and incomplete. At the last minute, the FBI ran a short, limited investigation. No corroboration appeared.

Democrats, believing Dr. Ford, supported her. Republicans, with no corroboration to spoil their likely victory, supported Judge Kavanaugh. The 50–48 confirmation vote fell almost strictly along party lines with one crossover on each side: Republican Lisa Murkowski (Alaska) against and Democrat Joe Manchin (West Virginia) for.

The Kavanaugh nomination and hearing divided America. The Great Divider, aka Donald Trump, first found Dr. Ford’s testimony credible, then cited the lack of corroboration, then ridiculed Dr. Ford, then called her testimony a Democratic hoax.

Does corroboration matter? Trump declared that young men must be wary of being victimized by women who attack their character with false claims. He’s hardly a reliable source for such advice. Moreover, millions of women have horrible stories to tell. But Republicans correctly cited corroboration as a basic tenet of American jurisprudence. The accused is presumed innocent; the burden of proof lies with the state.

Still, lack of corroboration did not disprove Dr. Ford’s claim. Moreover, women who have survived sexual assaults ranging from thoughtless and disrespectful to violent often cannot provide corroboration. When they do, their complaints frequently are dismissed, generally by men too busy with “other important matters” and, frankly, unconcerned.

I believe that Brett Kavanaugh assaulted Susan Blasey Ford. However, I do not knowit. This I doknow: The oft-scowling Mr. Kavanaugh, through his belligerence, disrespect towards Democratic members of the Judiciary Committee and partisan statements, resembled a teenager caught with his pants down, snarling and screaming to apply a verbal fig leaf. For this alone, I would have voted against confirmation.

That said, corroboration matters and hence America’s conundrum. We must follow our judicial principles in spite of what we “know” about the accused. That’s why Bugsy Siegel had his case dismissed.

Justice, however, sometimes is served in other ways. In 1947, Ben Siegel met his through a gangland assassination. Regarding Brett Kavanaugh, history may render an unkind verdict.

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AFTER SCALIA, WHAT?

The death of Supreme Court Justice Antonin Scalia has stirred quite a political spat. Republicans, like presidential candidates Ted Cruz and Donald Trump, and Senate Majority Leader Mitch McConnell, demand that President Obama not nominate anyone to the Court given that the 2016 presidential election is less than a year off. This line of thought is interesting but could lead to unanticipated developments.

I get the Republicans’ point. A new justice will play a major role in shaping the nation’s direction. They want the American people to have a say in the matter. But questions arise. For example, should a lame duck, eighth-year president be forbidden to take action on all major issues? Digging deeper, since the formal election process, which includes primary campaigning, starts in a president’s seventh year—Mr. Obama’s eighth year began this past January 20—should a president be sent to the sidelines in that seventh year? Wouldn’t a president better serve the Constitution by being active for six years then becoming a figurehead for two more?

Then again, not all presidents serve eight years (up to a maximum of ten if succeeding to the presidency), which requires election to two full terms. In my lifetime, John F. Kennedy (assassination), Lyndon Johnson (personal choice aka Vietnam), Richard Nixon (resignation—Watergate), Jimmy Carter (defeat—Ronald Reagan) and George H.W. Bush (defeat—Bill Clinton) all served less than two full terms (Kennedy less than one). So we might limit a president’s active service to the first two years of any term. During years three and four, presidential activity would be put on hold. The president could not make Supreme Court or other judicial nominations, introduce legislation from the White House or even serve as commander-in-chief without Congressional approval.

So a president would work actively for two years until election results wore thin. But consider this: Members of the House serve two-year terms. Why elect a president to be inactive for two years in each four-year term when the Speaker of the House, chosen by the majority party, could serve as the nation’s chief executive officer? The House Majority Leader would handle that body’s day-to-day business. Sounds like a parliamentary system rather than our constitutionally mandated presidential system? Let’s not get picky.

But hold on. Representatives position themselves for re-election at the start of their two-year terms if not right after Election Day. It makes no sense for a speaker to serve as chief executive when a new election is right around the corner. The American people should have their say. Unless, having just voted, they had their say.

Logic dictates a simpler solution: Eliminate the positions of President and Vice-President along with Congress. None of these folks provide true representation to Americans since there’s always another election just over the horizon. Leave all government functions to the states, which will serve as sovereign nations. Whether the Republic of Texas will accept passports from the Republic of California remains a question, but minutiae shouldn’t derail democracy.

In sum, if reactions to Justice Scalia’s death have taught us anything, it’s that the Constitution can be quite plastic in defense of the Founders’ strict intent. So let’s put the United States on hiatus. Another upside: we won’t have to hear crowds in Tehran chant, “Death to America.”

Read the first two chapters of FLIGHT OF THE SPUMONIS here at www.davidperlstein.com. You can get a signed copy from me or order a soft cover or e-book at Amazon.com.

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RELIGIOUS FREEDOM—A FABLE

I was walking on Fillmore Street when I saw a middle-aged man in a crimson ball cap bent over, his hands on his knees. A woman was comforting him. “You okay?” I asked. The man turned towards me. His cheeks were as crimson as his University of Alabama cap. “Never should’ve come to San Francisco,” he said. “Damn liberals want to take away our religious freedom.”

“What happened?” I asked. He straightened. I saw a plain gold cross dangling from a chain around his neck. His wife, a pale blonde, wore a similar cross but smaller. The man pointed at the entry to a clothing store. “They say they don’t do business with Christians.”

I was puzzled. San Franciscans are pretty good about leaving people to their particular religious inclinations. In fact, we were only blocks from a Catholic church and a Presbyterian one, as well as my synagogue.

The woman explained that she’d seen a blouse she liked in the window, so they went in. She found one in her size and knew it would fit. “When we go up to the cash register, the owner tells us we aren’t welcome in his store. He doesn’t want our money. Well, our money’s as good as anyone’s, isn’t it?”

“How crazy is that?” asked the man. “I’m a businessman myself. Own a chain of bakeries from Mobile up to Huntsville. Best wedding cakes in the state. We’re only here ‘cause there’s a convention. Otherwise, we wouldn’t be caught dead in San Francisco. This is the capital of gay marriage, you know.” The woman frowned.

“That fella,” the man continued. “He asks if we keep the Sabbath.” He rolled his eyes. “Jesus is our savior, right? We’re in church every Sunday.” The man’s chest rose and fell. “Then he asks if I work Saturdays. Like I said, I’m just like him. I own a business. Of course, I work Saturdays. ‘Cept football season. Roll Tide!” Apparently, the storeowner told the couple he was Jewish. Working on Saturday violated his religious beliefs. The Fourth Commandment and all. The man shook his head. “Everyone knows the Lord’s Day is Sunday.”

The woman rested her hand on her husband’s shoulder. “That man hasn’t heard the last from us. There are laws you know. You can’t just refuse to sell your goods to law-abiding citizens ‘cause they’re not just like you. What does he expect? That we stop being Christians?”

The man wiped the back of his hand across his face. “It’s not like we want to be friends with that fella. It’s only business. All we ask is to be treated with a little common courtesy like any other customer.” He pulled down on the bill of his cap. “Christians are under attack in this country,” he said. The woman nodded. “I bet that fella’s gay is what,” she said. “And now the Supreme Court says two men or two women can get married. According to my Bible, that’s a sin. And un-American.”

I wondered if they’d ever had a bad experience. “Have gays caused trouble in any of your bakeries?” I asked. The man looked at me with a mix of incredulity and contempt. “Hell, no,” he answered. “We don’t serve ‘em.”

Read the first two chapters of FLIGHT OF THE SPUMONIS here at www.davidperlstein.com. You can get a signed copy from me—July sale priced at $15 plus $3 postage if required—or order a soft cover or e-book at Amazon.com.

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THE COURT’S REAL LESSON

Two days ago, the Supreme Court—on the final day of the 2012–13 session—struck down the Defense of Marriage Act. The justices also ruled by a vote of 5–4 that proponents of California’s Proposition 8, which banned same-sex marriage, had no standing to appeal after Prop. 8 was struck down by a Federal judge in San Francisco. The ruling was big. The makeup of the majority was even bigger.

First, let’s look at some common objections to gay marriage. Many Christians cite Leviticus 18:22, which prohibits homosexuality between men—women are not mentioned. Why Leviticus? It’s part of the “Old Testament.” These folks don’t accept the other commandments of the Torah like not eating pork or honoring the Sabbath—the seventh day of the week, not the first.

Other Christians find proof-texts in the “New Testament.” Fair enough—for appealing to other Christians. What right have they—or anyone—to impose their religious views on members of other religions? Or of no religious bent? Think same-sex marriage is a sin? Don’t engage in it.

The real problem is people who, in the name of religious freedom seek to define religious duties for everyone. Archbishop Salvatore Cordileone of San Francisco helped raise $1.5 million to put Prop. 8 on the ballot. He once called gay marriage “the ultimate attack of the Evil One.” By all means, Archbishop, teach that to your flock. But not to me. My rabbi has a different perspective—as do I.

Other opponents cite procreation being the purpose of marriage. So what about couples who choose to be childless? Or marry—or remain married—when procreation is no longer possible? Someone of whom I know stood against gay marriage on the basis of its role in procreation—until he re-married at age 60.

And what about the impact on kids? An article in a recent Atlantic magazine examined research that, while in its infancy, indicates that children of same-sex couples don’t seem to be at a disadvantage.

Now, back to the Court’s Prop. 8 majority. It consisted of Chief Justice John Roberts, a conservative, along with liberals Ruth Bader Ginsburg, Stephen Breyer and Elena Kagan plus—drum roll—the conservative Antonin Scalia. Might Roberts and Scalia have had future court decisions in mind? Possibly. Yet regardless of their personal positions on Prop. 8 and gay marriage, each justice turned to the law—whether or not the case had standing—to determine his or her vote.

The battle over gay marriage will continue in many state legislatures. But what if more legislators, state and national, stare history in the eye and decide to pursue the interests of all their constituents without imposing their own social and religious leanings? And what if both liberals and conservatives feel freer to cross the ideological aisle with the understanding that the general welfare also includes that of the minority?

Fantasy? To a point. But fantasy once included the idea that the United States would someday accept gay marriage and turn its focus to issues of actual importance. We’re not quite there. But a new reality just got closer.

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Read the first three chapters of David’s novels SAN CAFÉ and SLICK! at davidperlstein.com. You’ll also find online ordering links for iUniverse.com, Amazon.com and bn.com. 

WE HAVE MET THE ENEMY

Last Tuesday, the Supreme Court heard an appeal against California’s Proposition 8, which bans same-sex marriage. If the arguments for Prop 8 hold weight, the court’s decision—if it doesn’t dismiss the case and renders one in June—may force my wife and I to divorce.

First, a disclosure. We have a gay son. A married gay son. Last August, he and our son-in-law exchanged vows in Vermont—one of nine states along with the District of Columbia that permits same-sex marriage. Now, according to conservative thinkers, same-sex marriage poses a grave threat to American families and thus the nation. Sadly, they’ve missed the point. The real villains are straight married couples, who underhandedly subvert family values.

Ask Charles J. Cooper, representing the opponents of same-sex marriage at the court. The purpose of marriage, he said, is procreation. Same-sex marriage, Mr. Cooper declared, “will refocus the purpose of marriage and the definition of marriage away from the raising of children and to the emotional needs and desires of adults, of adult couples.” Evidently, Mr. Cooper has not heard of birth control and its widespread employment. Or that same-sex couples raise well-adjusted children.

Most important, he hasn’t factored in the “straight-couple factor.” Based on Mr. Cooper’s views about marriage and procreation, it’s only logical—not to mention moral—that my wife and I divorce. Our 43-year-old marriage is a sham. We’re in our sixties now. Our three kids range from almost 37 to almost 30. We’re empty nesters and not about to have another child. So these days, our marriage consists of nothing more than a very satisfying focus on what Mr. Cooper dismisses as our “emotional needs and desires.”

Should California tolerate our flaunting the purpose of marriage? And what about young straight married couples concerned only with their own “emotional needs and desires?” Should Sacramento demand that straights declare their intention to have at least one child within five years of their wedding to obtain a marriage license? Should the state abrogate their marriages if they fail to become parents? Likewise, should the state terminate marriages that produced children when said offspring reach the age of independence?

This is all new stuff to be sure. Justice Anthony M. Kennedy, who may cast the deciding vote, noted that, “We have five years of information to weigh against 2,000 years of history or more.” Yet studies of children raised by gay and lesbian unions indicate positive outcomes. And let’s be honest. Cases of children abused and neglected by straight parents fill our courts. Many, many more never see a courtroom.

So Justice Kennedy’s observation doesn’t ring true to me. It almost suggests that Abraham Lincoln should have accommodated the United States’ 300-year tradition of slavery and never pushed the Thirteenth Amendment.

Be that as it may, my wife and I will hold our breath until June. Because, giving full credit to the late Walt Kelly’s Pogo, we have met the enemy of family stability and America’s enduring foundations—and they are us.

Again, Happy Passover and Happy Easter. May freedom and love guide us.

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Read the first three chapters of David’s new novel, SAN CAFÉ at davidperlstein.com. SAN CAFÉ is available at iUniverse.com, Amazon.com and bn.com.