Michael Gerson recently made reference in his newspaper column to a California Supreme Court decision almost 150 years old. People v. Hall (1854) shockingly reflects the racist climate of the times.
Hall, a white defendant, was convicted of murder on the testimony of a Chinese witness. On appeal, Halls lawyer argued that a nonwhite could not testify against whites. The defense cited a California law that blacks, mulattos, and Indians could not testify in any case against a white person. The law did not specifically mention the Chinese.
People v. Hall decided that since all nonwhites were similarly inferior, no one of nonwhite blood – including the Chinese – could testify against a white accused.
The decision is reprinted below. The bolded words are particularly disturbing.
* * *
THE PEOPLE, RESPONDENT, v. GEORGE W. HALL, APPELLANT.
Supreme Court of the State of California, 1854.
Mr. Ch. J. Murray delivered the opinion of the Court. Mr. J. Heydenfeldt concurred.
The appellant, a free
white citizen of this State, was convicted of murder upon the testimony of
The point involved in this case is the admissibility of such evidence.
The 394th section of the Act Concerning Civil Cases provides that no Indian or Negro shall be allowed to testify as a witness in any action or proceeding in which a white person is a party.
The 14th section of the Act of April 16th, 1850, regulating Criminal Proceedings, provides that “No black or mulatto person, or Indian, shall be allowed to give evidence in favor of, or against a white man.”
The true point at which we are anxious to arrive is, the legal signification of the words, “black, mulatto, Indian, and white person, ” and whether the Legislature adopted them as generic terms, or intended to limit their
application to specific types of the human species. . . .
The Act of Congress, in defining that description of aliens may become naturalized citizens, provides that every “free white citizen,” etc. . .
If the term “white,” as used in the Constitution, was not understood in its generic sense as including the Caucasian race, and necessarily excluding all others, where was the necessary of providing for the admission of Indians to the privilege of voting, by special legislation?
We are of the opinion that the words “white,” “Negro,” “mulatto,” “Indian,” and “black person,” wherever they occur in our Constitution and laws, must be taken in their generic sense, and that, even admitting the Indian of this continent is not of the Mongolian type, that the words “black person,” in the 14th section, must be taken as contradistinguished from white, and necessary excludes all races other than the Caucasian.
We have carefully considered all the consequences resulting from a different rule of construction, and are satisfied that even in a doubtful case, we would be impelled to this decision on ground of public policy.
The same rule which would admit them to testify, would admit them to all the equal rights of citizenship, and we might soon see them at the polls, in the jury box, upon the bench, and in our legislative halls.
This is not a speculation which exists in the excited and overheated imagination of the patriot and statesman, but it is an actual and present danger.
The anomalous spectacle of a distinct people, living in our community, recognizing no laws of this State, except through necessity, bringing with them their prejudices and national feuds, in which they indulge in open violation of law; whose medacity is proverbial; a race of people whom nature has marked as inferior, and who are incapable of progress or intellectual development beyond a certain point, as their history has shown; differing in language, opinions, color, and physical conformation; between whom and ourselves nature has placed an impassable difference, is now presented, and for them is claims, not only the right to swear away the life of a citizen, but the further privilege of participating with us in administering the affairs of our Government.
These facts were before the Legislature that framed this Act, and have been known as matters of public history to every subsequent Legislature.
There can be no doubt as to the intention of Legislature, and that if it had ever been anticipated that this class of people were not embraced in the prohibition, then such specific words would have been employed as would have put the matter beyond any possible controversy.
For these reasons, we are of opinion that the testimony was inadmissible.
The judgment is reversed and the cause remanded.
THANK YOU’S. We often get nice compliments from grateful clients. Some recent ones –
CA – California – Everything is good! I’m receiving medical compensation and I graduated with my advanced degree. All of this is because you made me believe that – like Rocky – every dog has his day!
MS – Virginia – I’m grateful for your patience and professional guidance in pursuing the appeal. The appeal was convoluted. I appreciate your time flexibility to accommodate my travel schedule. Your referral to Dr. Glassman was invaluable. You did a great job.
RF – Pennsylvania – Dear Wayne and your lovely bride, you have an honest heart – may God continue to use you to defend the innocent.
RB – Puerto Rico – Many years and hours of lots of information I research on the web but worthless without your knowledge and expertise. You have a touch of human kindness. I am very pleased with your professional work. Many blessings for you and your family.
KB – District of Columbia: Well, everything is finally final; I’m medically retiring from the military. It looks like everything is going well as planned, I went to Finance and they told me I don’t owe anything. I’m doing good right now.
|TRANSGENDER BODYBUILDER SCULPTS A NEW LIFE IN THE NAVY. Sailor Wes Phils was named one of the winners of the 2018 International Association of Trans Bodybuilders competition. ADOPTED DAUGHTER OF MILITARY FAMILY DEPORTED. Retired Lt. Col. Patrick Schreiber and his wife Soo Jin legally adopted a daughter, Hyebin. Despite the state of Kansas issuing a birth certificate recognizing the Schreibers as her parents, the Department of Homeland Security has said there’s no legal route to citizenship for Hyebin. Once her student visa expires she will have to leave the U.S. A Federal court in Kansas has ruled that the adopted daughter of a now-retired Army officer — who missed a key immigration deadline for her while he was deployed to Afghanistan — will have to leave the U.S. Army Lt. Col. Patrick Schreiber and his family had put off formal adoption of now-daughter Hyebin in 2013 because he was about to deploy overseas. He and wife Soo Jin legally adopted Hyebin after he got back, then started the official paperwork to seek citizenship for her. She had just turned 17. The U.S. immigration law cutoff for a foreign-born adopted child to become naturalized is 16; the U.S. District Court in Kansas declined to find an exception in Hyebin’s case. She is allowed to complete her degree in chemical engineering at the University of Kansas next year. Then she must return to Korea. Hyebin was Soo Jin’s niece, and when Hyebin’s home life became too difficult, Schreiber and his wife took her in as their own daughter.|
PLEA DEAL REACHED IN CASE AGAINST FIRED MOBILITY WING COMMANDER. A plea deal has been reached in the case of the former commander of the 375th Air Mobility Wing at Scott AFB Illinois, who was originally facing charges including sexual assault and cruelty and maltreatment.
Col. John Howard, who was fired from command in December, accepted non-judicial punishment for conduct unbecoming an officer and fraternization with a junior enlisted airman, the 18th Air Force said in a recent news release.
Howard has submitted his paperwork to retire.
The Air Force said that the victim did not want to participate in a court-martial proceeding against Howard…
“OOPS!” QUOTE FROM CONFEDERATE STATES NAVY CAPTAIN. The U.S. Navy Personnel Command issued an apology Monday evening after its Twitter account posted a motivational quote from Confederate Navy Capt. Raphael Semmes.
The quote in question read, “A military, or naval man, cannot go very far astray, who abides by the point of honor.”
Semmes, who also served in the Mexican-American War for the U.S. Navy, commanded the Confederate C.S.S. Alabama during the Civil War.
LOOKING BACK. During World War II, commissioned nurses received 50% of the pay of male officers of the same rank. They were not entitled to receive salutes. Disregarding these inequities, 59, 000 nurses volunteered – and half of those ended up in combat zones. Some 217 lost their lives. — James R Benn, The First Wave.
Of course, nothing’s ever really deleted you know,” [the policeman] said. “From anywhere. There’s always an electronic footprint. A record on a computer server somewhere in the world. Imagine that. Every message you ever sent, every website you ever visited, every picture you upload, every post on social media. Everything. The amount of information people are putting out into the public domain about themselves today… It’s unprecedented in human history. It’s all out there, all that data about you, stored forever. It’s just a case of knowing where to look… It’s a gold mine, as far as law enforcement goes.”
– T.M. Logan, in a mystery story entitled Lies.
Modern technology has spawned new devices and new types of data. For law enforcement and defenders, there’s a whole new world of scientific challenges in the digital age. Under Supreme Court precedent, there are serious issues of a reasonable expectation of privacy. Among them:
Prosecutor s are demanding cell site information from service providers, requiring them to turn over data on every device connected to a specific cell site. This can help identify phone’s presence at the scene of a crime
Enhanced 911 tracking
Federal law mandates that all cell phones have the ability to convey their location for emergencies when 9/11 is dialed
The “Stingray” device simulates a cell site and connects the Stingray to law enforcement instead of the cell phone service provider
Third-party online accounts
Most Americans maintain accounts with technology giants like Apple, Facebook, or Google. Content may include online communications, but also detailed data about how, when, and where a user interacts with the service
Modern bank records.
Today, these are far more than canceled check and bank statements; traditionally, there is little expectation of privacy. These are negotiable instruments, and the law is reasonably settled. But modern bank records do not clearly fit in the same pigeonhole
“Smart devices” give ordinary objects wireless connectivity. These devices track a great deal of personal information and are appealing targets for law enforcement
IF YOU HAVE A SENSE OF IRONY. “Tejanos” are proud of the fact that they lived in Texas before it ever became a republic, much less a state. For a while, opponents of Texas statehood insisted that they were not enough Americans living there. Soon, a great number of North American “immigrants” arriving in Texas.
A tongue-in-cheek friend has commented, “why didn’t the tejanos build a wall to keep the Americans out?”
MUST WE HAVE TO LEARN OVER AND OVER? One of our interesting possessions is a little Ft. Bragg pamphlet on battle fatigue, almost 50 years old. It advises leaders how to minimize traumatic stress. What a shame those good lessons about compassionate treatment of warriors with PTSD get forgotten after every war and must be relearned.
IS CONGRESS DUMB? New Jersey Rep. Bill Pascrell writes in the Washington Post Outlook about what many view as bumbling mistakes in the Congress.
He claims that funding was severely cut by then-Speaker Newt Gingrich. Up to one third of the Congressional workforce was cut, with many government think tanks defunded. As result, representatives turned to corporate lobbying organizations to learn the facts. Lobbying expenditures between 1983 and 2013 ballooned from $200 million $3.2 billion.
Today, he claims, Congress spends absolutely nothing on independent assessment of technology issues.
WITCH HUNTS. These days, it is not unusual to hear politicians use the term “witch hunt.” Ricard L. Sjoberg writes of historical witchhunts, noting that:
- About 60,000 Europeans were executed for alleged witchcraft from the 15th to the 18th centuries
- The idea that witches were members of an ancient fertility cult – though floated repeatedly – had been debunked by scholars
- Witchhunts in fact did not rely primarily on testimony of children. To the contrary, most testimony came from adults and was typically provided under torture
VOTED OFF THE ISLAND? Gary Corby’s testing novel, The Pericles Commission is set in ancient Athens at the time democracy was first conceived. One interesting aspect: Each year, the least popular politician was exiled for a decade!
THE SERVICE READING ROOMS. True enough, there is no value as a legal “precedent” between various cases at the service corrections boards. Nevertheless, applicants would do well to find similar cases – perhaps successful – from the following list and pattern their briefs in a similar vein:
https://boards.law.af.mil/ Oct 18, 2018 … Boards of Review Reading Rooms. This is the Department of Defense Electronic Reading Room for the Military Departments Boards for the …
https://boards.law.af.mil/ARMYboards.htm Oct 1, 2018 … Army Board for the Correction of Military Records (BCMR).
https://boards.law.af.mil/NAVYboards.htm Oct 1, 2018 … Navy for Correction of Naval Records ( BCNR)
https://boards.law.af.mil/NAVY_DRB.htm Oct 16, 2018 … Enter Search Term(s):. Naval Discharge Review Board (DRB) …
https://boards.law.af.mil/AF_PDBR.htm Jan 13, 2019 … Air Force Physical Disability Board of Review (PDBR) …
The U.S. Supreme Court may be ready to revisit the Feres doctrine, the 68-year-old ruling that limits troops from suing DOD.
The court recently ordered the U.S. Solicitor General to file a response to a petition in a military medical malpractice case, Daniel v. United States. The case was brought against the Federal government after an active-duty Navy nurse, Lt. Cmdr. Rebekah Daniel, died in 2014 following childbirth at Naval Hospital Bremerton, Washington.
Since 1987, the Supreme Court has refused to hear cases questioning Feres. But the order from the court indicates that some justices may wish for a re-look.
Walter Daniel, a former Coast Guard officer, initially filed a malpractice suit against the Navy after his wife died four hours after giving birth to their daughter. Ms. Daniel, who worked as a labor and delivery nurse at the hospital, began hemorrhaging immediately following delivery. Medications failed to stop the bleeding. The suit alleges that additional lifesaving measures were too late, contributing to her death.
The case and subsequent appeals were dismissed in the lower courts based on Feres, a 1950 Supreme Court decision that prevents troops from suing DOD for injuries incidental to military service.
Feres dates to a series of cases in the late 1940s involving injuries to active duty troops. The widow of Lt. Rudolph Feres sued the government after her husband died in a barracks fire caused by a defective heating system.
The 1950 Supreme Court decision said that said DOD already provided adequate disability compensation for personnel and dependents; to allow troops to sue the federal government would in effect cause civilian courts to question military orders and discipline.
The last Feres case petitioned to the Supreme Court also involved childbirth and an active-duty woman: In 2009, the daughter of an Air Force captain was injured when her mother received a medication that caused a severe allergic reaction while she was in labor. The court never heard the case; the Justice Department settled out of court in 2016.
In opinions written before they became U.S. Supreme Court justices, Ruth Bader Ginsburg and Clarence Thomas seemed to express interest in reviewing Feres.
DOD argues that Feres is necessary because it could cause military health givers to be more cautious in treating personnel, which could in turn affect their ability to save lives, both in military hospitals and on the battlefield.
More than 7,000 petitions are filed each year to the Supreme Court, with the justices accepting only 75 to 80 cases.
RELIGIOUS DIVERSITY. Sailors deployed aboard the carrier John C. Stennis have plenty of religious choices – including Norse paganism. Stennis is holding lay services in the ship’s chapel to serve a “small, committed” group of sailors identifying as adherents of this faith group. Estimates suggest nearly 8,000 members in the U.S. and more than 16,000 worldwide.
SEXUAL ASSAULT IN TWO ARENAS. Both the military and higher education have struggled with high numbers of sexual assault. This April, they will combine forces in a symposium on campus sexual assault. .
Sexual assaults in both the military and on campus have been under a microscope in recent years.
Reports of sexual assault in the services were up almost 10 percent between fiscal years 2016 and 2017, according to an annual DOD Department report released last May. The RAND Military Workplace Study opined that that 14 percent of female service members and 2 percent of male service members have been assaulted. It also found 22 percent of women and 7 percent of men had been sexually harassed.
LAWYER’S CORNER –10 COMMANDMENTS OF CROSS-EXAMINATION. Prof. Irving Younger is famous – 30 years after his death – for his contribution to the art of cross-examination. The stated purpose is to guarantee that advocates who follow each commandment conduct a reasonably competent cross-examination.
In a recent issue of the Champion magazine of NACDL, William James argues that these 10 commandments remain “good law in today’s courtrooms.
1. A brief objective – two or three concise, sharp points
2. Short questions, using plain words
3. Use of leading questions
4. Asking only questions where you know the answer
5. Refusing to let the witness repeat direct testimony
6. Denying the witness a chance to explain
7. Careful listening to the witness’s answer
8. Avoiding quarreling with the witness
9. Never asking the “one question too many”
10. Saving argument for summation
DOING THE RIGHT THING – TODAY’S ETHICAL QUESTION. Would Miranda warnings be improved or harmed by adopting the British approach? Words to the effect of:
You are under caution. Anything you say can be given in evidence against you…but it might harm your defense if you fail to make something known which will later be used in court.
ALCOHOLISM IN THE MILITARY. “What do you do with a drunken sailor— or soldier or airman?” In “12 Stepping the Military,” Nancy Olson summarizes the history of alcoholic treatment in the military. According to the GAO, DOD had no reliable historical data showing the extent of alcoholism in the armed forces.
Commanders generally choose between four unpalatable alternatives
· leave the alcoholic alone
· transfer him/her
A Pearl Harbor survivor named Sgt. Bill Swegan apparently started a one-man operation at Mitchel Field, NY in 1948. In1953, he transferred to Lackland AFB with the title of psychiatric social worker.
By the end of the 1950s, however, the military withdrew all support from alcohol treatment programs.
The story then moves to late 1969, where the Navy attempted an alcohol rehab program at Long Beach, California. It was judged a success. However, some individuals vehemently opposed viewing alcoholism as an illness. Among those who sought treatment at the Navy’s Long Beach program – Billy Carter, the president’s brother; and Betty Ford.
A LIBERAL PERSPECTIVE. How many people go bankrupt every year because of medical bills? A liberal friend responds:
GRAND TOTAL: 0
GRAND TOTAL: 643, 000
LAWYER’S CORNER. Jeffrey Toobin, CNN legal analyst and New Yorker contributor, spoke at Stanford Law School on the subject of the Supreme Court in the” age of Trump.”
A reporter summarized Toobin’s views as follows:
One of the greatest political events of our lifetime is the evolution of the Republican Party since the 1970s. Moderate and liberal Republicans were formerly well represented, along with conservatives, in all branches of public life; that was reflected in the court. That Republican Party is gone –the evolution of the court will again reflect the political composition of the country.
Placing a new appointee on the court has become contentious, taking on strong left/right partisanship. This is a relatively recent development – Ruth Bader Ginsberg was confirmed with 90 votes.
Republicans much more than Democrats have been focused on a court reflecting their own views and values. In the 70s, the Republican platform called for gun control, had no provision on abortion. As Republican views developed on those issues, their advocates, focused more and more on composition of the courts as a specific vehicle to alter legislation and public policy.
Democrats, in contrast, did not especially focus on the courts in their conventions and campaigns or appeal to voters on that basis.
Evangelicals focused on these social issues and chose to set aside negative aspects of Trump’s values and behaviors – they sought transformation of the judiciary (which they are substantially getting, at lower court levels as well.)
In Justice Gorsuch’s first 15 votes, there is only one Justice with whom he has consistently voted – Clarence Thomas. So the new judge’s conservative credentials have borne out, says Toobin.
What does this mean for the future? Toobin predicts:
· Roe v. Wade will be overturned, if not in the next months, at some point. Many states have positioned themselves to pass legislation banning abortions, which will go into effect as soon as they perceive a court majority supporting this. Passing such legislation ensures appeals to the Supreme Court and the opportunity to overturn.
· Affirmative action – gone
· Gay Rights – public acceptance of marriage might prevent its overturn, but the Bakery case and Hobby Lobby are models to expand the assertion of the religious rights of service providers or employers, exempting them from requirements now seen as civil rights
· Expansion of gun rights beyond the Heller case
· A permissive view toward campaign financing following Citizens United
· Narrowing the bounds of regulatory agencies. Justice Kavanaugh appears to support limiting regulatory agencies to only areas directly covered by legislation.
The reporter concludes:
Despite these predictions, [Mr. Toobin ] remains optimistic that our institutions will hold and the country will get through whatever changes come without great social upheaval. Despite the wide political divide, we are not on the verge of fascism or collapse. Change will come through the electoral system. The Resistance is focused on demonstrations, awareness and a great increase in women seeking office — a responsible effort within the political system. We have not seen significant political violence beyond the Charlottesville events. He mentioned journalism, universities and churches as important institutions holding to the center.
NO MORE BREAD AND WATER PUNISHMENT. Come 2019, junior sailors will have one less worry chasing them: no more bread and water punishments.
Beginning one January, skippers can no longer sentence NJP enlisted shipmates to three days in the ship’s brig solely on bread and water.
Bread and water had for decades been an arcane disciplinary tool at the disposal of commanding officers at sea. The non-judicial punishment potentially affected E-1 to E-3 sailors and embarked Marines.
NEW UCMJ PROVISIONS. The Military Justice Act of 2016 makes some substantive changes to the UCMJ, including updating the ways the armed forces can prosecute sexual crimes, cyber-stalking, public corruption, credit card theft, and cruelty to animals.
IMPROPER COMMAND INFLUENCE? President Trump has tweeted that he will review the ongoing case of an Army Green Beret charged with the premeditated murder of a Taliban bomb-maker in Afghanistan.
The tweet – referring to Major Mathew Golsteyn as a “U.S. Military hero” – may run afoul of the military’s prohibition on unlawful command influence.
Golsteyn and fellow elite soldiers captured the alleged bomb-maker while deployed in Afghanistan in 2010. According to the New York Times, they took the man back to their operating base; fearing he would identify a Taliban informant, they took him off base, shot him, and buried the body.
A year later, Golsteyn admitted the killing while applying to the CIA. The Army investigated, eventually stripping his combat award and Special Forces tab, and reprimanded him, the Times reported.
The Army opened a new investigation and charged Golsteyn with murder.
4 PETTY OFFICERS ACCUSED OF BARRACKS SEX CRIMES WITH A CHILD.
Four petty officers accused of sex crimes with a child in the barracks of a Washington state base have received non-judicial punishment and are being kicked out of the Navy, officials confirmed this week.
The four avoided court-martial because an officer reviewing the case found insufficient evidence to take the charges to trial. According to a command spokesman, “there was insufficient evidence that they were aware the victim was underage.”
LAWYER’S CORNER. In a recent blog, we posed the question of what would happen if explorers found a small group of living Neanderthals. Now, one of them has allegedly murdered another. What should happen?
Here is one attorney’s response:
Under U.S. law the intellectually disabled are not eligible for the death penalty. Except for Florida and Texas, he would probably be found ineligible for the death penalty. In most of the rest of the world, it would not be an issue.
With regard to the underlying conviction, who had the jurisdiction to try him? Who could testify? If he could not communicate with his attorney, how could he have effective assistance of counsel? How could he assist in his own defense?
And another response:
Who sits on the jury? Isn’t the Neanderthal man entitled to a jury of his peers?
Also, what is our historical record many years ago, dealing with crimes committed by indigenous Americans? What about individuals in decidedly different cultures – e.g., acquired territories such as American Samoa?
[S]EXTORTION. Service members have been duped into sending money to male prisoners posing as women on dating apps.
Agents from the Naval Criminal Investigative Service have served warrants for a ring victimizing hundreds of service members since 2015.
“Operation Surprise Party” uncovered a prisoner-led extortion, money laundering and wire fraud scheme that “cost 442 service members from the Army, Navy, Air Force and Marine Corps from across the United States more than $560,000 in financial loss,” an NCIS release said.
Army officials and South Carolina law enforcement revealed in October that prison inmates – posing on dating applications as women in the same age bracket as the targeted soldier – were conning service members into wiring cash following nude photo exchanges.
After swapping photos, the unsuspecting soldier would receive a text from another phone number, where another prisoner would pose as the fictional girl’s father or law enforcement official.
CONNECTICUT AND THE VA. For +/- 500,000 veterans, leaving the military with an other than honorable discharge typically ends benefits and VA health care. This is often true even when their problems involved in PTSD. But last month, Connecticut opened state VA resources to such vets, according to press reports.
Comment: We are unclear how Connecticut achieved this laudable goal‘s eligibility should turn on Federal – not state – standards.
USAF BEARD WAIVER…. The Air Force has granted a religious accommodation beard waiver to a Muslim airman, making him the first airman so treated. SSgt. Abdul Rahman Gaitan, Travis AFB, California, received the exemption. Raised as a Catholic, he developed an interest in the Muslim faith while stationed in Turkey.
… ARMY’S NEW POLICY ON ACCOMMODATION. Meanwhile, a new Army policy OK’s soldiers wearing hijabs, turbans and religious beards. Observant Sikhs and conservative Muslims may wear religious head coverings and beards, thanks to a directive that updates Army grooming and appearance regulations.
… WHILE MARINES SEEK GENDER NEUTRALITY. In a push to be more gender-neutral, the Marine Corps is removing the term PREG from fitness reports for pregnant Marines.
GRADE CREEP? The Navy’s admiral-to-ship ratio, then and now? According to the publication Task & Purpose, in 1944 there were 256 flag officers for 6,084 ships; today there are 359 flags for 280 ships.
“The current Army Blues Uniform will return to being a formal dress uniform, while the Army Greens will become the everyday business-wear uniform for all soldiers,” the release said.
LAWYER’S CORNER. Suppose that explorers come across a small group of living Neanderthals. They remain “primitive,” echoing what archaeologists surmise about their culture. Under a United Nations mandate, these Neanderthals are protected. However, there appears to be a clear case of murder in their small colony.
The prosecutor asks for the death penalty.
The defense counters that Neanderthals are a distinct species and should not be measured by Homo sapiens standards.
PURELY PERSONAL. A favorite uncle comments that you were old when…
….. Your sweetie says, “Let’s go upstairs and make love,” and your answer is “Honey, I can’t do both!”
….. Friends compliment you on your new alligator shoes and you’re barefoot.
….A sexy woman catches your fancy and your pacemaker opens the garage door.
….. You don’t care where your spouse goes, just as long as you don’t have to go along.
…. You are cautioned to slow down by the doctor instead of
by the police.
….. An “all-nighter” means not getting up to go to the bathroom.