Prop 8 Supreme Court Arguments: Standing Matters

If the swing voter, Justice Anthony Kennedy, is questioning standing–whether the Prop 8 case is properly before the US Supreme Court, both sides may want to be concerned.

The standing issue may well let the Supreme Court punt and not decide on the controversial same sex right to marry. The Justices won’t need to consider whether the 14th Amendments due process and equal protection rights apply nor whether marriage should be between a man and a woman. If they punt, then, the California Courts decision to overrule the ban on same sex marriage stands. It’s one way for the Supreme Court could dodge the controversy but it also a legitimate legal avenue for them to take.

Proponents of a ballot initiative have never been granted standing before the Supreme Court, a point made by Justice Ginsburg. The law requires a party to have standing to bring a lawsuit–to show harm or interest in the outcome. Problem is, Prop 8 proponents may not have standing because their “proprietary interest”, as expressed by Justice Ginsburg, is no different than the voters and appears to end when the ballot measure is passed. Lawsuits brought on behalf of a third party or to redress a grievance suffered by all taxpayers (voters) lack standing and their cases are dismissed. In short, Prop 8 proponents may have no right to stand before the Court and ask for legal redress. Case dismissed.(Future ballot proponents take note.)

Or, the Supreme Court could narrowly rule by upholding the California Court’s refusal to ban same sex marriage. The ruling would only apply to California and leave the question up to the other individual states and voters to decide.

Or, the Supreme Court could again decide that marriage is a fundamental right and now extend that right to everyone regardless of gender. Thus, prohibiting states from banning same sex marriages. A historic civil rights decision.

Should all people be treated equally or do we want a two-tiered system? When the rights of a minority are being dictated by a majority, sooner or later, the US Supreme Court, the highest court in the land, will weigh in just as they did with interracial marriages and the civil rights laws. And, if the Supreme Court punts, we can expect the voters and legislatures will weigh in.

Let’s hope the Supreme Court does not make a political decision and makes a just decision based on the law and evidence before them.

Simply my opinion, what say you?

Here is a recording of an interview I gave this morning regarding Prop 8 and DOMA.


Oscar Pistorius Intruder Defense Is Nonsense

(Update 8/18/2013: Pistorius to be formally charged tomorrow with premeditated murder of Steenkamp. Not guilty plea expected with trial to begin in March 2014. No doubt, it will be a battle of the forensic experts.)

Oscar Pistorius killed Reeva Steenkamp out of fear. Fear of losing her, the same reason domestic violence victims are killed by their partners. The only intruder that evening was Oscar’s emotions. Call it jealous rage, heat of passion, fear of rejection, fear of abandonment or unresolved grief from the loss of another woman he deeply loved, his mother, the result is the same, a 29-year-old woman is dead. Shot 4 times by her boyfriend, Oscar.

Anyone who knows anything about domestic violence or has suffered as a victim of domestic violence knows what happened to Reeva in the early morning hours of Valentine’s Day and knows why Reeva took her cellphone into the toilet and locked the toilet door at 3 am. Doors are locked for protection.

Yet, defenses can be crafted to play or capitalize on people’s fear. After all, any salesperson knows emotions are how you sway outcomes. Ask OJ Simpson, a high-profile athlete who walked, when he played on people’s fear of racism, police corruption, and distrust of the police to distract from a classic DV killing. So far, Oscar’s intruder defense is working. As reported, it clearly “resonates” with the public. It is meant to and it is meant to sway the ultimate decider, the trial judge. Who doesn’t have a fear of an intruder? Yet, is that really what happened here? Certainly, it allows people to look away from the ugly truth of domestic violence. But, unlike the OJ Simpson case, domestic violence is front and center. We know Oscar killed Reeva, he admitted it. The question is “why” not “who”. Now, we have to look even deeper as to the “WHY” did he kill and that puts domestic violence on trial.

The intruder defense is nonsense. Oscar claims he has a fear of intruders yet he leaves the bedroom balcony sliding doors open as they slept. There were no burglar bars on the bathroom window. The bathroom window was left open. Ladders were left outside of the house. Does that sound like someone who has a fear of intruders? Simply, not credible. But, maybe you want to “resonate” with an intruder fear because it is easier than looking at the ugliness of domestic violence. Or, maybe you’d rather focus on whether the police wore shoe covers and ignore that Oscar shot at someone behind a locked door, a situation lacking danger and provocation, amounting to an unjustified killing.

Oscar’s version is simply not plausible. Are we to believe that Oscar would not protect the “love of his life” when faced with a possible intruder? Would you leave “the love of your life” in bed without alerting them, ensuring their safety or even checking on their whereabouts before you go to check for an intruder? I find it interesting that the talking heads on TV explain it away by saying, “you never know what you would do in that situation” Hogwash. Ask anyone. We instinctively protect the ones we love.

Having prosecuted domestic violence cases, I get it. People don’t want to look at problem of domestic violence, they’d rather blame it on a victim’s clothing or an intruder. And, they certainly don’t want to see it in someone they have idolized for years like a national hero or a celebrity. Who wants to admit their hero is a killer? Or, that they were deceived? Or, if he could kill in rage, could I?

Given the public outrage over the recent brutal gang rape of a 17-year-old South African woman, the growing epidemic of violence against women and the fact that a woman in South Africa is raped every 3 minutes, an “accidental” killing would surely avoid more public outrage, unrest and a quick conviction. Maybe, Oscar believes he accidentally killed Reeva, but, who would believe that Reeva didn’t cry out after the first shot?

Maybe, it wasn’t a coincidence that Reeva had begun to speak out about violence against women. Just as she began to shine the light on domestic violence, her death will hopefully bring awareness, change and healing.

And, maybe, Oscar can turn his pain into helping others heal their emotional wounds before they act out in violence.

Rest in peace, Ms. Steenkamp.

Simply my opinion, what say you?

Read my other post: Oscar Pistorius What Doesn’t Make Sense


Oscar Pistorius: Bail Unlikely In US

The Chief Magistrate Nair finds Oscar Pistorius has “made a case to be released on bail”. Bail is granted. Pistorius will await trial as a free man outside prison. The Magistrate found Pistorius was not a flight risk, no evidence he will intimidate witnesses and no propensity for violence. Based on those findings, bail was inevitable. A big victory for Pistorius. And, given he won’t be in custody, there will likely be no rush to trial. You can expect continuances and delays in the trial date.

This was a bail hearing, yet, the State remarkably failed to provide sufficient evidence to deny bail. For instance, evidence to support that Pistorius threatened to break someone’s legs, shot a gun in public, was violent in public or owns a home in Italy.

Pistorius’ affidavit made the difference in the bail hearing. Very risky move to lay out so many facts in an affidavit, but, it kept Pistorius out of jail. Also, it gave the defense an opportunity to plant seeds, lock in and question some State testimony before the State has had time to complete their investigation and the opportunity to potentially “influence” public opinion and fact finders. First impression does matter.

The Magistrate considered that Pistorius “reached out to try to meet the States case” in his affidavit with his “version under oath” unlike the “flimsy” denial affidavits he tends to get. However, the Magistrate did have problems with Pistorius’ affidavit. For instance, why Pistorius didn’t check with his girlfriend, the victim Reeva Steenkamp when he left the bed? Why Pistorius didn’t call out as to who was in the toilet? Why he put himself in danger when he went back to get his gun and return to the bathroom? Why the victim didn’t call out?

And, the Magistrate had serious problems with Investigator Botha and his investigative skills, although, he said, Botha is “not the States case”.

While we await the trial, you can expect much public debate about violence against women, the South African justice system, whether Pistorius is being treated like any other accused and whether Pistorius murdered Reeva Steenkamp.

Low bail for a premeditated murder case? Bail was set at $114k, surrender passport & guns, no alcohol and he can’t return to his home.

BTW, in the United States, most defendants accused of premeditated murder don’t get bail and bail hearings don’t last three days but rather 15 minutes in America’s crowded courtrooms. Also, many judges may have considered the repeated and unprovoked, reckless at best, shooting of someone behind a locked door as evidence of a propensity of violence to deny bail. And, most US prosecutors would have had evidence to prove a flight risk and the prior acts of violence, alleged above, when they request no bail.

Meanwhile, a 29-year-old women is dead. Shot 4 times by her boyfriend.

Next Court date June 4, 2013.

Simply my opinion, what say you?


Oscar Pistorius Case What Doesn’t Make Sense

(Update 8/18/2013: Pistorius to be formally charged tomorrow with premeditated murder of Steenkamp. Not guilty plea expected with trial to begin in March 2014. No doubt, it will be a battle of the forensic experts.)

While Oscar Pistorius lawyers and the prosecution argue over whether a neighbor could hear fighting before the alleged premeditated shooting death of Pistorius’ girlfriend, Reeva Steenkamp, or, whether steroids or herbal remedies were found in Pistorius’ home, they fail to focus on some telling facts, as revealed in Pistorius’ bail affidavit.

1. The Victim Locked the Toilet Door.

Why would Ms. Steenkamp lock the toilet door? The toilet “is inside the bathroom and has a separate door” that had a key to lock it. Why did she lock the door? Some may close a door for privacy, or before they flick on a light, but, why lock the door, especially given it is an interior toilet? Having prosecuted many domestic violence cases, there is only one reason a victim locks a door. Protection.

2. Bedroom Sliding Doors Left Open in a High Crime Area.

Pistorius’ affidavit states, “I am acutely aware of violent crime being committed by intruders entering homes with a view to commit crime, including violent crime. I have received death threats before. I have also been a victim of violence and of burglaries before. For that reason I kept my firearm, a 9 mm Parabellum, underneath my bed when I went to bed at night. During the early morning hours of 14 February 2013, I woke up, went onto the balcony to bring the fan in and closed the sliding doors, the blinds and the curtains. I heard a noise in the bathroom and realised that someone was in the bathroom.”

If Pistorius has had intruders in the past and fears intruders, why would he leave his bedroom sliding doors open at night while he and Ms. Steenkamp slept?

And, “there are no burglar bars across the bathroom window no bars on the bathroom window.” He fears intruders, yet, no bars on bathroom window?

3. Ladders left Outside His House in a High Crime Area.

He also “knew that contractors who worked at my house had left the ladders outside.” Again, if Pistorius fears intruders, why leave ladders outside or doors or windows open?

4. Pistorius calls Friend before calling Paramedics or Police.

Most people would instinctively call paramedics or the police when a loved one has been shot.

Read Pistorius affidavit here.

Accident killing or not, this is a domestic violence killing, and the actions of the victim and the defendant are always very telling.

A terrible tragedy.

Simply my opinion, what say you?

Read my post Oscar Pistorius Intruder Defense is Nonsense.

(Update 2/21/2013: No decision on bail hearing today. Bail hearing with closing arguments continue to tomorrow. Reportedly, Ms. Steenkamp had taken her cell phone with her when she went into the bathroom at approximately 3 am. As of yesterday, the lead investigator Botha is reportedly being charged with attempted murder in an unrelated matter when he and other officers allegedly were drunk and shot into a bus of people. Although the charges had been withdrawn in 2011, they were being reconsidered prior to the Pistorius case. Botha has been taken off the case. Questions have been raised as to “preferential treatment” when Pistorius is being held at the police station rather than jail like other prisoners. BTW, as reported on Piers Morgan and CNN, Ms. Steenkamp’s brother and Pistorius’ best friend have said they have never met Pistorius and Steenkamp, respectively. Was it rage or fear? Ballistics and forensics will likely provide the answer.)


Delhi Gang Rape Trial: Banning Media Perpetuates Secrecy

India’s High Court rules again to ban media from covering Delhi’s ongoing gang rape trial at the request of the police.

Good idea?

Tough question, when it comes to rape trials balancing the possibility of public unrest, and protecting the victim from further victimization, as some believe, with the freedom of the press considerations and the public’s right to know what happened.

While India closes it courtroom to media coverage, an American judge in a juvenile gang rape trial in Steubenville Ohio opens the courtroom to the public and the media. Why the difference?

I wonder is it better to know the truth no matter how horrible the details or is it better to be in the dark?

Having worked with victims, they would vote for the truth.

Rape is a crime that counts on secrecy. Maybe, it is time to re-examine “secret” court proceedings.

Simply my opinion, what say you?