Monday, November 5, 2012


 In G-d we trust, as the storm’s wrath recedes
"Call 1-800" says FEMA to victims in need

Our neighbors are dead and homeless – from them Sandy stole
But the President walks our sullied streets and he will make us whole

No food, no water, stars and stripes soaking wet
4 years without a job and deeper in debt

Glory, glory hallelujah – al Quaeda is on its heels
4 Americans slaughtered in Benghazi
Mr. President, what’s the deal?

Candidates pleading to the undecided – only 48 more hours
The entitled will do all they can to see their prophet stay in power

America, America, G-d shed his grace on thee
Stop the spending, and pretending
That Obamacare is free

Love who you want
Decide the fate of your own body
But for $16 trillion in debt, how in good faith can you lobby?

Vote for love of country
Not for revenge
Stop apologizing to those who kill us
And spitting in the face of our friends

“O beautiful for heroes proved in liberating strife”
That in our nation beats the heart of our conviction…
Our posterity, our might

Break the cycle that defeats them
Lay poverty and disparity to rest
Use your right of suffrage
Put freedom to the test

Friday, July 22, 2011

Freedom is A Right - Stars and Stripes A Responsiblity

They never leave room for the possibility of self-error.  Pundits, commentators, bloviators all.  And those on the sidelines seem to be screaming for a simpler time, a less restrictive one, one when men stood back-to-back, walked ten paces, and turned to face each other, each intent on taking from the other's wife her husband and from his children their father.

We've walked a million miles since then.  But we lost our pace.  We stopped to rest on a perceived perch of contemporary thought.  We stopped to enjoy our imagined excellence.  We've lingered outside courtrooms to spit in the face of a social contract - one once bound in a collective embrace and still grounded in a belief that inside each of us shines the spark of the Creator. 

In an age in which the private affairs of men often consumes the nation's focus, more so than the economic and social realities facing it  - the lack of a balanced budget, a comprehensive healthcare bill that exceeds Congress' regulatory authority under the Commerce Clause - a pervasive lack of personal responsibility - and unconstitutional infringements on individual freedoms, remembering our genesis is critical.  Remembering that we are but dust, that our time on this earth is limited, and that we have a duty to forge a better life for our offspring, requires a more judicious dealing and a return to the framework upon which our Republic was built. 

It was only 220 years ago, on December 15, 1791, that the Bill of Rights was ratified.  These 10 Amendments to our Constitution were not, as Justice Brennan opined, a product of legislative invention, rather a declaration of divinely ordained liberties. They represented a united belief in immutable freedoms, i.e. the right to worship freely, to assemble peaceably, and to speak (relatively) unreservedly (the freedom of speech, contrary to popular belief, not being absolute).

Our nation's founding fathers understood man's intrinsic vulnerability and tendency toward self-preservation - hence the right to keep and bear arms. They believed that a person's home should be a place of impregnable refuge - hence the owner's ability in times of peace to decide who could be quartered there. And, the Founding Fathers believed, individual freedom was a birthright - hence the proscription against unreasonable searches and seizures, being tried twice for the same offense, and being deprived of life, liberty, or property without due process of law.

For the founding fathers, the rights to a speedy and public trial and to protection from cruel and unusual punishment were heavenly endowments. They were antecedent rights recognized by men who believed in their existence absent any social contract. But sagacity and foresight told our founding fathers that codification was essential to forestall any infringement upon those rights.

Their conviction permeates every American flag - liberty's banner - freedom's icon in radiant red, unadulterated white and impenetrable blue.  But our stars and stripes have met the challenges of human frailty.  We are too readily swayed by predilection and preconception, by entitlement and greed, color and creed.  We're ethnocentric xenophobes with unlimited patience for those who kill in the name of God and no tolerance for law-abiding jurors whose verdict is inconsistent with our uninformed judgment.  We've forgotten that freedom is more than a right.  It is a responsibility - and one that should never be wielded in ignorance.

It seems we've a long way to travel on wisdom's journey.  But enlightenment waits patiently - trillions of light years in the distance.  We are a compassionate, introspective, resilient people with a tremendous capacity for growth.  We need to pick up the pace, however, if we want to secure a healthier and more hopeful future for our children - and for theirs.

John Locke, The Second Treatise of Civil Government 1690:

John Locke, Essay Concerning Human Understanding, Book 2, Chapter 21, Section 51

Text of Declaration of Independence:

Sunday, July 17, 2011

How "Speedy" Does a Speedy Trial Need To Be: Legal Considerations, Budgetary Realities, and Innovative Solutions

So what constitutes a “speedy” trial?  The short answer:  it depends.

As recently as July 14, 2011, the Court of Appeals of Georgia weighed in on this issue in State v. Thaxton, reversing the trial court’s grant of the defendant's motion for discharge and acquittal for violation of his constitutional right to a speedy trial. See State v Thaxton (Ga.App, 2011).

In Thaxton, the defendant was arrested on or about October 39, 2008, on seven counts of dog fighting, cruelty to animals, and possession of more than an ounce of marijuana. He was appointed counsel within days of his arrest (on November 4, 2008).  A month later - on December 3, 2008, Thaxton was released from jail on bond, the conditions of his release including no contact with animals and GPS monitoring, except during his daytime employment.

On January 11, 2010, almost fifteen months after his arrest, Thaxton was indicted on one felony count of possession and three counts of misdemeanor cruelty to animals. A month or so later, Thaxton filed his Motion for Discharge and Acquittal on the basis of a pre-indictment delay.        

In its analysis, the Court of Appeals discussed two types of pre-trial delay, the first of which precedes a criminal defendant’s arrest or indictment and implicates due process guarantees under the Fifth and Fourteenth Amendments.  Jones v State, 284 GA. 320 (1), 667 SE2d 49 (2008).  The second type of pre-trial delay occurs after an arrest or indictment, implicating the Sixth Amendment. Id. at 322 (2); Haisman v. State, 242 Ga. 896, 898 (2), 252 SE2 397 (1979).  Since Thaxton’s motion complained of the 15-month delay that post-dated his arrest, Sixth Amendment standards needed to be applied in resolving his speedy trial claim. Thaxton, supra.

Considerations for determining speedy trial claims under the Sixth Amendment have been outlined by the United States Supreme Court.  See Barker v Wingo, 407 U.S. 514, 92 SC 2182, 33 LE2d 101 (1972); Doggett v. United States, 505 U.S. 647, 112 SC 2868, 120 LE2 520 (1992). In Doggett, Justice Souter delivered the opinion, noting that a defendant's initial burden in triggering a speedy trial analysis (the first prong of the four-factor test outlined in Barker v Wingo) is to demonstrate that the interval between the indictment and trial crosses the line between ordinary delay and delay which is "presumptively prejudicial." A determination that the interval period is not presumptively prejudicial is the death knell of a speedy trial claim.  

If presumptive prejudice is found, then the Court must look at whether the defendant or the government is primarily responsible for the delay, the timeliness of the defendant’s assertion of his right to a speedy trial, and whether the defendant was prejudiced by the delay. Doggett, supra.  It is a careful balancing test.  “No one factor is sufficient or necessary to sustain a finding that that the right to a speedy trial has been denied.” Id.  None of the factors, according to the Thaxton Court, have “talismanic qualities,” but the Court is nonetheless required to make findings of fact and conclusions of law consistent with the balancing test.  Because the Thaxton Court did not did not do so, the case was reversed and remanded for a decision consistent with the Court of Appeals' decision. 

Interestingly enough, a couple of months before Thaxton was decided, The Augusta Chronicle (on February 9, 2011) published an article entitled, “Judges warn of impact of funding cuts,” noting a “failure of the system to provide access to the court,” contributing to judicial backlogs, staff cuts, and speedy trial violations.  The article, which can be found at, specifically notes that in the Peach State, “backlogs have forced months-long waits for relatively simple matters such as child support hearings.”

Georgia's Chief Justice, Carol Hunstein, reportedly had to lay off seven employees, shut down the Georgia Supreme Court’s law library, relinquish office space - even return a copy machine.  The Court even had to solicit donations from vendors for pens and pencils and used unpaid student interns to keep the office running.  See  

These budgetary realities beg certain questions:  When did the right of access to the Courts stop being a priority?  How many children will go without child support while the State wades through backlogs of support cases that it does not have the means of prosecuting?  And how long will victims of violent crimes wait to see their assailants face justice? 

As Chief Judge Hunstein noted in her 2011 State of the Judiciary Address, Georgia cannot afford the $1 billion plus dollars it costs each year to maintain its prison system.  One in every thirteen Georgians is behind bars or on probation or parole – the highest per capital figure in the nation, a figure that prompted Judge Hunstein to question whether Georgia’s mandatory minimum sentences are really making Georgians safer and if so, at what cost? 

Part of the solution, according to Chief Judge Hunstein, is to give Georgia’s judges greater discretion in the courtroom. “Our judges know how to balance punishment with the public safety. And they know that sending a young man to prison for a non-violent crime may not be the best sentence if he will emerge years later with no education, a prison record and little chance of getting a job. As a Texas legislator said, we need these offenders to be taxpayers, not tax burdens.”

According to Chief Judge Hunstein, we can save taxpayer dollars and still protect the public by creating and embracing innovative changes to the criminal justice system – as Georgia has been doing with drug courts.  According to Chief Justice Hunstein (who was citing to a recent report by the Georgia Department of Audits), drug courts have resulted in lower sentencing costs (up to 80 percent less than the average daily cost of other traditional sentencing options) and lower recidivism rates. And according to the Georgia Department of Audits, 7% percent of drug court participants reoffended, as compared to 29% of those who simply served time in prison for drug-related offenses.

Another type of specialty court, domestic violence courts, can also help conserve taxpayer dollars – in addition to safeguarding the public, savings lives, and reuniting Georgia families.  According to Chief Judge Hunstein, Georgia has the 15th highest rate of domestic violence homicides in the country.  However, programs like that implemented by Clayton County’s Chief Magistrate Judge, Daphne Walker, who began a special calendar for domestic violence cases, have reportedly resulted in a significant reduction in domestic violence homicides.

The upshot – budget cuts, case backlogs, and a reduction in number of judges who are able to decide criminal cases will necessarily result in constitutional rights being violated and the public welfare being placed in jeopardy.  So what can members of the legal community do?  Support innovative solutions, like drug and domestic violence courts.  Brainstorm with colleagues about creative solutions yet untapped.  And opt to be a part of the solution by lending a constructive voice to the dialogue.

Wednesday, July 6, 2011

The Media's Attacks on The Casey Anthony Jury Are Disgraceful

The media's assault of the Casey Anthony jury is as repugnant as it is inappropriate. They did their job. They sacraficed time that none of us are guaranteed away from those they love. They did so knowing they were needed by sick children, frail parents, and/or the animals who looked at the door every evening at 5:00 pm expecting them to open it. They did so - knowing they were missing their 20th wedding anniversary or a parent's 90th birthday. They did so because they were called to serve - and directed to follow the law, which, by the way, they absolutely did.

The jury was not authorized to find Ms. Anthony guilty based on possibilty, probability or suspicion.  They were not prepared to render a verdict that might send a woman to her death when there was no direct evidence that she killed the daughter with whom every one of the State's witnesses claimed she had a loving relationship. She may have killed Caylee - but if she did not, my guess is that Caylee would not have wanted her Mother to spend the rest of her days where she is going to spend them. Behind bars or not - she will be imprisoned for the rest of her life. I don't know if that's justice - because only she, Caylee, and God know what happened. But the media or its pundits act as if they are omniscient. They are not. They know as much - and as little - as the rest of us.

Monday, July 4, 2011

Mr. Stengel: We The People Deserve More Credit

We the people are neither as obtuse nor as self-deluded as Time Editor Richard Stengel supposes in his June 23, 2011, piece, “One Document, Under Siege.”

The framers of the Constitution may not have imagined themselves pontificating on a flat screen, sexting over the Internet, or singing the lyrics to “Captivated” by Lady Gaga, but they understood human vulnerability. They understood that the absence of a social contract invited chaos, political repression, even genocide. That their deaths prevented them from making the acquaintance of Joseph Stalin, Adolf Hitler, Ida Amin, Muammar Gadhafi, Saddam Hussein, and Osama Bin Laden does not nullify the promises of the Constitution and Declaration of Independence.

No, the framers did not anticipate the deaths of more than half a million Americans during the Civil War or bear witness to the horrors of Nazi Germany. But they were students of history and they knew of man’s capacity to evil.  They knew of Tomas de Torquemada, Vlad the Impaler, and Ivan the Terrible.  Religious bigotry, torture, and extra-judicial killings existed before them, and the framers knew they would persist in their absence.  The framers' intent was to moderate the possibility that Americans would be susceptible to such iniquity. They provided a framework for "a more perfect” union, one grounded in justice, equality, and religious tolerance – and one wherein the general welfare of its citizens would be promoted and their liberties protected. 

So would the framers think that drones over Libya constitute a violation of Article I, Section 8 of the Constitution?  The answer has nothing to do with whether George Washington ever dreamed that man could fly or use global-positioning satellites to aim a missile.  The question is whether drones over Libya and using global-positioning satellites to aim missiles (and asking the UN Security Council to authorize the US to bomb Libyan tanks and artillery) amounts to a declaration of war and if so, whether our Executive Office usurped congressional authority in declaring it.  The framers, I suspect, would not have needed time to deliberate before responding.

Friday, June 10, 2011

ObamaCare: A Dearth of Transparency - What Isn't Being Said, Heard, Or Considered

Americans are donning jaded visors – and being wittingly hoodwinked. When it comes to the Patient Protection and Affordable Care Act (PPACA), we’ve been handed a dearth of transparency, while sinking into a turbid lagoon of parody and perversion.

Political and academic bellowing has been vociferous, seemingly ubiquitous, and too often blindly adopted.  For years Americans have listened to the pundits and partisans herald facts about America’s cost-prohibitive and undeniably disparate health care system, and they’ve been all too willing to accept the only alternative presented.

Countless Americans are operating under the impression that the PPACA will provide them with comprehensive, affordable, quality health care coverage that they believe Canadians and Europeans enjoy. But studies show that Americans have significantly lower cancer mortality rates than both Canadians and Europeans. Breast cancer mortality is 9 percent higher in Canada, 52 percent higher in Germany, and 88 percent higher in the United Kingdom than in the US.  In the UK, the mortality rate for prostate cancer is 604 percent higher than in the US.  In Norway, it’s 457 percent higher.  And among British men and women, colorectal cancer is approximately 40 percent higher than it is for men and women in the US (Atlas 2009).

What most Americans don’t realize is that they also enjoy greater access to treatments for chronic diseases than Canadians and Europeans. Of those Americans who are candidates for statin drugs (medications designed to reduce cholesterol and inhibit heart disease), more than half (56%) are using them, while only 36 percent of Dutch, 29 percent of Swiss, 26 percent of Germans, 23 percent of Brits, and 17 percent of Italians who could benefit from statin drugs are actually receiving them (Atlas, 2009).

It would similarly surprise most Americans to learn that our ailing health care system provides greater access to preventative cancer treatments than that afforded Canadians.  Almost 90% of middle-aged American women, as compared to 72% of Canadian women, have had a mammogram.  Fifty-four percent of American men, as compared to 16% of Canadians, have had a prostate specific antigen (PSA) test, and approximately 30% of Americans have had a colonoscopy, while 5% of Canadians have had one (Atlas, 2009).

Americans have been merrily misinformed regarding the economic realities of adopting a Canadian-comparable health care system. According to John C. Goodman, Ph.D., founder and president of the National Center for Policy Analysis and a Senior Fellow for the Georgia Public Policy Foundation, economic studies have shown that the financial burden of a universal Medicare program would be twice as high as the administrative costs of universal private coverage (Goodman, 2007). And while the most common argument for national health insurance is that it will give low-income and uninsurable folks equal access to health care, it is instructive that among the nonelderly, white populations of both the US and Canada, low-income Canadians are 22 percent more likely to be in poor health than Americans (Goodman, 2007).

Americans have alternatives – to the existing, exclusive, disparate, inaccessible, unaffordable health care system – and to ObamaCare, a program that has little hope of accomplishing its desired ends. In 2010, 15 percent of employers with 500 or more employees had established clinics that were providing primary-care services to employees and another 10 percent of employers indicated that they were considering providing similar services in 2010 or 2011. The costs for on-site clinic services are typically lower than community-based clinics.  Some are free. Their proximity to work and greater affordability makes it more likely that employees will get annual check-ups, receive treatment for health issues that they might otherwise have ignored, submit to testing that might engender a healthy lifestyle change, or receive referrals to specialists that could prove live-saving (Andrews, 2011). While on-site clinics are not the answer to the health care dilemma, they are potentially part of an as yet undefined, creative, viable, cost-effective solution – one that is actually being threatened by the PPACA.

As many as 78 million Americans are at risk of losing employer health coverage if and when the PPACA goes into effect. Fifty percent of employers, according to a McKinsey & Company survey, will or are likely to seek alternatives to their current health-insurance plans if ObamaCare is implemented. Among those at risk of losing their health insurance coverage are an estimated 156 million non-elderly Americans (Turner, 2011).

Before the PPACA passed, the Congressional Budget Office (CBO) estimated that only 9 to 10 million people who currently get health insurance through their employers would switch to government-subsidized insurance. The McKinsey report, however, forecasts that employers will drop employee health insurance coverage altogether, limit the employees to whom coverage is offered, or present defined contributions for insurance. Among those employers with a high awareness of the health-reform law, it is expected that more than 50% are likely to stop providing a health insurance benefit to their employees (Turner, 2011).

But again, Americans have alternatives. In 1996, Congress passed the Health Insurance Portability and Accountability Act (HIPPA). The portability clause provides that as long as an insured has "proof of creditable coverage" for18 months or more without a lapse of more than 63 days, he (or she) is given "credit" for prior coverage and entitled to coverage for any "pre-existing" medical condition when changing insurance carriers.  However, "portability" protection was allotted only to those persons insured on an employer sponsored group health insurance policy.  If the portability clause were extended to self-employed entrepreneurs, small business owners, individuals and families, nearly 14 million insured Americans wouldn’t have to worry about being denied coverage for a “pre-existing” illness (Tucker, 2011).

For those who are uninsured, have access to government assistance and have chosen not to take advantage of it, there is little reason to believe that they would take advantage of the benefits afforded them under the PPACA, under which the annual penalty for failing to purchase health insurance is $95 or 1% of one's income - and when the IRS is proscribed from assessing criminal fines against those who refuse to comply with the individual responsibility mandate. The threat that the IRS will withhold an individual’s tax return for non-compliance means nothing to approximately half of all U.S households who (as of 2009) paid no income tax (Tucker, 2011).

It’s time for Americans to step out of the fog.  It’s time for vigilance, time to consider the facts, time for creative solutions, time for informed and pragmatic choices.  It’s time to operate from fact – not fiction. It’s time to make decisions grounded in a framework of both personal responsibility and communal accountability, not some unconstitutional, overreaching congressional mandate that makes a mockery of our united promise “to secure the blessings of liberty to ourselves and our posterity.”  We the people need to establish justice in a more reasoned, insightful, equitable, fiscally responsible, and fruitful way.

Atlas, Scott W. (July 1, 2009).  Ten reasons why America’s health care system is in better condition than you might suppose.  Hoover Digest.  Stanford University. 

Goodman, John C. (December 14, 2007).  Does Socialism Work? Debunking the MythGeorgia Public Policy Foundation. Retrieved at

Andrews, Michelle. (May 24, 2011).  Many On-The-Job clinics Offer Primary Care, Kaiser Health News, May 24, 2011 retrieved at

Turner, Grace-Marie (June 8, 2011).  No, You Can’t Keep Your Health Insurance.  The Wall Street Journal.  Retrieved at

Wednesday, June 8, 2011

Obamacare: Are Americans Being Unconstitutionally Shoved Into Commerce's Tributary?

According to the White House, The Patient Protection and Affordable Care Act (PPACA or the Act) is suffused with sweeping reforms designed to make health insurance affordable and accessible to millions of uninsured Americans - while improving the quality of coverage for all Americans.

Twenty-six states have disagreed and  challenged the Act, claiming that by forcing Americans to purchase health insurance, Congress has exceeded the commercial regulatory authority granted it under the Commerce Clause (Article I, Clause 8, Section 3 of the US Constitution). The question, which is being considered  today in the 11th Circuit Court of Appeals, is whether the failure to obtain health insurance is a commercial activity subject to Congressional regulation.
The Court will also consider a secondary issue, specifically whether the other provisions of the PPACA are severable from the individual mandate, and if not, whether the entire Act should be struck down.
The concern, according to the Amicus Curiae Brief filed by the US Chamber of Commerce, is that in the absence of the individual mandate, people would wait until they became ill to purchase insurance, resulting in premium strikes and healthy individuals allowing their existing coverage to lapse or foregoing coverage entirely. This would foster a further rise in premiums, a potentiality experienced by states like New York, Washington, and Kentucky wherein similar health insurance reforms have been enacted in the absence of a minimum coverage mandate.
In its Amicus Brief, the Chamber also notes that the Act’s risk adjustment mechanism cannot function properly absent the individual mandate, community-rating and guaranteed-issue reforms. The purpose of the risk adjustment mechanism is reportedly to reallocate premium revenues among insurers so that each receives an amount proportional to its risk exposure. But according to the Chamber, if the individual mandate, guaranteed-issue, and community-rating provisions are invalidated and the risk adjustment mechanism is permitted to remain, “gross inefficiencies in the health insurance markets would exist," resulting in flawed underwriting, poor health care management, and ultimately, rising insurance costs, emasculating the Act’s primary goal - affordable health care.
Let's hope that the 11th Circuit makes a judicious decision, because the Patient Protection and Affordable Care Act, in its current form, is likely to protect little and unlikely to afford the kind of protection intended.  
President Barack Obama. (September 9, 2009). Remarks to a Joint Session of Congress on Health Care; Available at
David A. Saltzman. (March 4, 2011).  PPACA:  To Sever or Not to Sever?  Life Insurance Selling.  Retrieved at
Hadley Heath. (November 20, 2010).  A Severe Mistake for ObamaCare.  Constitutional Corner.  Retrieved at

Kevin Sack and Robert Pear. (November 26, 2010).  Health Law Faces Threat of Undercut From Courts. New York Times.  Retrieved at