Elect Richard Mott To Supreme Court On Tuesday

My friend, Richard Mott, has received the Democratic and Working Families nominations for Supreme Court Judge in this area of upstate New York. The Supreme Court is New York's top trial court. It has trial jurisdiction over many kinds of important civil cases. And the district here covers seven counties: Albany, Rensselaer, Greene, Columbia, Ulster, Sullivan, and Schoharie.

Richard is an experienced trial lawyer and father to five children. He was raised in Ulster County and now lives in Columbia County. This is his first election. I have known him for 25 years or more, and I consider him an honest, fair, impartial, talented candidate for judicial office. I am happy to be able to vote for him and support his candidacy.

A very little bit about him:

A native of Esopus in Ulster County, Richard Mott has resided in Columbia County since 1976 in the Town of Kinderhook. He has been in private practice at his Albany office since 1982. Mott also served in the Columbia County Public Defender’s Office from 1982 to 1987. He was the Kinderhook town attorney from 1984 to 1986 and has extensive experience in all phases of the law. He's also a veteran and a former special education teacher.

The race he is in is a four-way race. There are two Republican incumbents and two Democratic challengers. The top two vote getters are elected. Richard has been found Qualified for the job by the Independent Judicial Screening Committee. But because it's a judicial election, there is very little he can say about his views. Or about his incumbent opponents, who were appointed (and not elected in a contested election) to Supreme Court fourteen years ago.

Obviously, getting the word about this wonderful candidate out in a 7-county area is an enormous, time consuming, expensive undertaking. This is a sprint. The election is on Tuesday, November 6.

Richard deserves and needs your support. It's an undertaking you can help along by sending a donation of any size to:

Committee to Elect Richard Mott to Supreme Court P.O. Box 112 Kinderhook, NY 12106

But far more important than the money at this late stage, is your vote. Please vote for Richard Mott for Supreme Court on Tuesday. There are also good reasons why voting for Richard should NOT be and is not a partisan issue. This is important if you are a Greene or Columbia County voter. As I wrote in a Letter to the Editor to the Hudson Register Star,

On election day voters in Columbia and Greene counties enjoy the rare opportunity of electing their own resident Supreme Court Judge in the seven county Third Judicial District ... Richard Mott of Kinderhook.

Although each county within the district has a Supreme Court, only the three largest, Albany, Rensselaer and Ulster, have their own resident Supreme Court Judges. Albany has 8; Rensselaer and Ulster have 4 each. Columbia and Greene counties have none. In fact, Columbia hasn't had a resident Supreme Court Judge since 2006; Greene, since 2002. These counties have had to depend exclusively upon periodic visits by judges from the three largest counties to resolve their local disputes. This inequitable distribution of judges within the district clearly delays justice to the residents of the smaller counties within the district. But if prominent trial attorney, Richard Mott, is elected to the Supreme Court, the administration of justice in both Columbia and Greene counties will be significantly enhanced and local dispute resolution will be expedited because Richard would sit in Supreme Court in Hudson, and very likely, in Catskill. Richard Mott has been rated qualified for this position by the Independent Judicial Election Qualifications Commission. I urge you to vote for Richard Mott for Supreme Court Justice on November 6.

Please join me in voting for Richard Mott on Tuesday. It doesn't matter what line you use to vote for him. But it does make a world of difference who you vote for in this race.

Please Support This Judicial Candidate In Upstate New York

Richard Mott

My friend, Richard Mott, has received the Democratic and Working Families nominations for Supreme Court Judge in this area of New York. The Supreme Court is New York's top trial court. It has trial jurisdiction over many kinds of important civil cases. And the district here covers seven counties: Albany, Rensselaer, Greene, Columbia, Ulster, Sullivan, and Schoharie.

Richard is an experienced trial lawyer and father to five children. He was raised in Ulster County and now lives in Columbia County. This is his first election. I have known him for 25 years or more, and I consider him an honest, fair, impartial, talented candidate for judicial office. I am happy to be able to vote for him and support his candidacy.

A very little bit about him:

A native of Esopus in Ulster County, Richard Mott has resided in Columbia County since 1976 in the town of Kinderhook. He has been in private practice at his Albany office since 1982. Mott also served in the Columbia County Public Defender’s Office from 1982 to 1987. He was the Kinderhook town attorney from 1984 to 1986 and has extensive experience in all phases of the law.

The race he is in is a four-way race. There are two Republican incumbents and two Democratic challengers. The top two vote getters are elected. Richard has been found Qualified for the job by the Independent Judicial Screening Committee. But because it's a judicial election, there is very little he can say about his views. Or about his opponents.

Obviously, getting the word about this wonderful candidate out in a 7-county area is an enormous, time consuming, expensive undertaking. This is a sprint. The election is on November 6.

Richard deserves and needs your support. It's an undertaking you can help along by sending a donation of any size to:

Committee to Elect Richard Mott to Supreme Court

P.O. Box 112

Kinderhook, NY 12106

Making The Independent Judiciary A Joke

The independence of the judiciary means that the Courts should be free from improper influence from outside interests. What a great idea for having a transparent, fair judicial system. It's a concept that has so much promise. But in practice the present Supreme Court and its members may be driving it off a cliff. Today's news about Justice Thomas's wife's lobbying business may signal its ultimate demise.

The New York Times reports that Justice Thomas's wife,

who has raised her political profile in the last year through her outspoken conservative activism, is rebranding herself as a lobbyist and self-appointed “ambassador to the Tea Party movement.”

Virginia Thomas, the justice’s wife, said on libertyinc.co, a Web site for her new political consulting business, that she saw herself as an advocate for “liberty-loving citizens” who favored limited government, free enterprise and other core conservative issues. She promised to use her “experience and connections” to help clients raise money and increase their political impact.

Can you read that sentence again? "She promised to use her 'experience and connections' to help clients raise money and increase their political impact." Her connections. Well, her biggest, if not her only connection is her husband, who has more than once imposed his wackadoodle analysis of the law on the nation to benefit those who appointed him to the high court and whom he holds close to his heart: Bush v. Gore and Citizens United are only the top of the heap. Her connections indeed.

Of course, lawyers and law professors and others note that this is an ethical outrage:

Ms. Thomas’s effort to take a more operational role on conservative issues could intensify questions about her husband’s ability to remain independent on issues like campaign finance and health care, legal ethicists said.

Justice Thomas “should not be sitting on a case or reviewing a statute that his wife has lobbied for,” said Monroe H. Freedman, a Hofstra Law School professor specializing in legal ethics. “If the judge’s impartiality might reasonably be questioned, that creates a perception problem.”...

Arn Pearson, a vice president at Common Cause, a liberal group that has been critical of potential conflicts at the Supreme Court caused by Ms. Thomas’s work, said her new position, combined with Justice Antonin Scalia’s recent address before a closed-door seminar of the Tea Party Caucus, provided further evidence of “the politicization of the court.”

“The level of bias we’re seeing is really troubling,” Mr. Pearson said.

Mr. Friedman is too kind.

And how is it that Ms. Thomas got herself in this position?

Ms. Thomas’s founding of her own political consulting shop, Liberty Consulting, was first reported Thursday by Politico, which said she had begun reaching out to freshmen Republicans in Congress.

The move comes a few months after she gave up the top spot at Liberty Central, a conservative Web site that she founded in 2009 and that has strong links to the Tea Party movement.

An anonymous $500,000 donation to start up Liberty Central came from Harlan Crow, a Dallas real estate investor and Republican financier, Politico reported.

Mr. Crow, reached by phone Friday, would not say whether he was the source of the money. “I disclose what I’m required by law to disclose,” he said, “and I don’t disclose what I’m not required to disclose.”

You can be sure that Mr. Crow's $50,000 is just the first drop, and that there will be a torrent of money from others who want to buy influence from Ms. Thomas. And her husband.

And what's this about reaching out to "freshmen Republicans in Congress," the very people who are presently trying to repeal the health care bill either all at once (fail!) or piece by piece by piece? And what's this simultaneous news that the Virginia Attorney General is trying to take the Government's appeal that state's crazy health care decision directly to the Supreme Court?

Just coincidences, I'm sure. Just coincidences. I'm sure the Court can mind its own ethics.

Quietly Sanctioning Prison Beatings

Clarence Thomas may not have spoken in oral arguments at the Supreme Court in more than four years, but this morning Linda Greenhouse writes in the New York Times about Thomas's consistent, twice repeated argument that the Eighth Amendment does not proscribe "harsh treatment", including beatings of prisoners. You read that correctly. Prison beatings, according to Justice Thomas, aren't forbidden by the Eighth Amendment. And presumably, neither are stress positions, sleep deprivation and other forms of torture. And as if that position were not repulsive enough, Thomas apparently wants it to be adopted by the new majority of the Supreme Court.

Greenhouse points out that during his confirmation hearing, Thomas expressed his empathy for prisoners:

During his Senate confirmation hearing, he had claimed a certain empathy for prisoners. He described looking out the window of his chambers at the Court of Appeals and watching prisoners being loaded into buses to be taken back to their cells. “I say to myself every day, but for the grace of God there go I,” he told the members of the Senate Judiciary Committee.

Those sentiments, however, must have been added solely to manipulate the listeners. They must have been just another sleight of hand attempt to cast himself as a victim. Why do I say that? Because in 1992, four months after he assumed his seat on the Court, Thomas dissented in Hudson v. McMillan. Keith Hudson, if he believed what Thomas said during the confirmation hearings, must have been happy to have him on the Court to hear his case. Hudson "had been kicked and punched by three guards while he was handcuffed and shackled. He suffered bruises, swelling and loosened teeth, injuries that a federal appeals court, in dismissing his lawsuit, deemed so minor as to be beneath the notice of the Eighth Amendment." The Supreme Court reversed and reinstated the suit. In behalf of a 7-judge majority Judge Sandra Day O'Connor wrote, “When prison officials maliciously and sadistically use force to cause harm, contemporary standards of decency always are violated.” Put another way, the Eighth Amendment forbids malicious and sadistic beatings of prisoners.

And what did Thomas (and Scalia) find objectionable with this ruling? Greenhouse puts it this way:

The new justice said that the Constitution’s framers “simply did not conceive of the Eighth Amendment as protecting inmates from harsh treatment.” The Eighth Amendment dealt with only the actual sentence, he maintained, and not with conditions inside a prison or deprivations that were not a formal aspect of the sentence. He said the Supreme Court had taken a wrong turn in the 1970’s when it adopted a more expansive view, and he added, “The Eighth Amendment is not, and should not be turned into, a National Code of Prison Regulation.”

Isn't that wonderful? Guards have always beaten prisoners. The Constitution, and particularly the Eighth Amendment proscription against cruel and unusual punishments, according to Thomas and Scalia, doesn't apply in any fashion to these myriad beatings. The Constitution is silent about post sentence events, including beatings and torture and excessive solitary confinement and lack of medical care and brutality in all forms during a sentence. So prisoners have no recourse in federal court, when they are beaten or otherwise brutalized. So much for empathy. Long live hypocrisy.

Unfortunately, that's not the end of the story. Eighteen years later, in a 9-0 decision, the Supreme Court relying on stare decisis followed Hudson in Wilkins v. Gaddy. Jamey L. Wilkins claimed that a guard had answered his request for a grievance form by slamming him onto the concrete floor and then punching, kicking and choking him until another guard pulled the attacker off. Thomas and Scalia concurred in the result in a separate opinion, in which Thomas sought to solicit a case in which he and others in the new Supreme Court majority might overrule Hudson and advance the argument that the Eighth Amendment permits guards to beat prisoners who ask for grievance forms. Greenhouse writes,

Justice Thomas, joined by Justice Scalia, concurred only in the judgment, not the court’s opinion. “I continue to believe that Hudson was wrongly decided,” he said. But noting that “no party to this case asks us to overrule Hudson,” he said that he was going along with the majority because as long as the precedent was on the books, it clearly required the result the Supreme Court had reached.

Justices do not casually note that “no party has asked us to overrule” a particular precedent. It is an invitation to send the court just such an invitation, and it is a technique that Justice Thomas has used before to good effect. Concurring in a 1997 decision, Printz v. United States, which struck down a federal background check for gun purchasers on states’-rights grounds, Justice Thomas observed that no one has asked the court to look at the case through the lens of the Second Amendment’s right to bear arms. “Perhaps at some future date” the court would have the opportunity to consider the scope of the Second Amendment, he added, helping to initiate a project that came to fruition in the Heller decision in 2008.

I am horrified, but not surprised by Thomas's views. And to the rest of the world, these views make the United States appear to be a band of brutal barbarians. But, of course, there is really nothing that can be done about this. Thomas and Scalia were appointed for life. One has to wonder aloud how judges with such aberrant and bizarre views of the Constitution have been confirmed.

State Killing: Scalia Doesn't Care Whether You're Innocent, You Get Executed Anyway

In the middle of Justice Scalia's dissent in Troy Davis's case, a dissent that Clarence Thomas joined in, we have this remarkable, astonishing, shocking sentence:

“This court has never held that the Constitution forbids the execution of a convicted defendant who has had a full and fair trial but is later able to convince a court that he is ‘actually’ innocent.”

I cannot believe that they wrote this in a Supeme Court opinion. And I'm not alone in thinking I would never, never, never see something like this in a published opinion.

Let's begin with the trial. The State of Georgia tried Troy Davis for murder and it got a conviction. And that conviction was upheld on appeal. In fact, there was nothing the matter with the trial, nothing wrong at all according to the appeals courts except one small thing. The jury convicted an innocent man.

Troy Davis was convicted of the capital murder of Mark MacPhail, an off-duty police officer who as then working as a security guard. You might think that convicting an innocent person was a serious problem with the trial. Unfortunately, Davis's persistent claims that he was innocent of the crime weren't enough to convince anyone. It was only later on, after the trial, after the appeals, that the ugly circumstances in the case emerged.

There were nine witnesses to the crime in which MacPhail was killed. Anthony Davis was apparently in a pool hall with a lot of other people. A man named Sylvester Coles was beating a homeless man outside; people including Davis emerged from the pool hall to see what was happening. MacPhail came to the aid of the person being beaten and was shot and killed. At trial Sylvester Coles was the prosecution's star witness. Seven other people said Anthony Davis committed the crime. The gun was never found. There was no physical evidence of any kind. That was the trial testimony, and it lead to a conviction and the death penalty. And to several affirmances on appeal.

And then, and then, and then, ut oh. Seven of the eight witnesses who claimed under oath and at trial to see Davis shoot MacPhail gave affidavits that their testimony at trial was false and they recanted their testimony. And some said that Coles was the actual killer and not Davis and that police coercion forced them to testify against Troy Davis instead of the real killer.

So Anthony Davis sits on death row. And he's facing execution. And the case goes to the Supreme Court. The majority, thank goodness, sent the case back to federal court for a hearing. Good. But Justices Scalia and Thomas dissented. And it's their dissent that makes me cringe.

Why? Evidently, in Scalia/Thomas World, if the state tries and convicts the wrong man, one who is actually innocent, and there's no Constitutional error committed in the trial according to the state courts, there's no constitutional problem with the state's killing him. Even if he's innocent. In other words, it's 100% legal, 100% ok to kill an innocent person. Law Professor Paul Campos explains:

Scalia takes the position that, from a legal perspective, it no longer makes the slightest difference whether Davis is innocent of the murder he was convicted of committing, and for which, in all likelihood, he will be executed. If a defendant got a fair trial in state court, there’s nothing the federal court can do, Scalia argues, to reverse that verdict—even if new evidence comes to light that convinces the court to a moral certainty that the defendant is innocent.

Scalia represents an extreme example of a certain kind of judge that positively revels in coming to conclusions that are morally revolting but “legally” sound. Judges of this type like these sorts of cases because they demonstrate that law is a supposedly nonpolitical and intellectually rigorous practice, rather than a touchy-feely exercise in doing what strikes the judge as the right thing.

What, after all, could be more nonpolitical and intellectually rigorous than executing an innocent man, simply because “the law” requires that result? In a perverse way, such bloody logic is a kind of advertisement for the supposed objectivity of the legal system, since we can assume that no sane decision maker would reach such a decision voluntarily. (The great legal historian Douglas Hay explained the 18th-century English practice of sometimes acquitting obviously guilty men on absurd procedural technicalities, such as incorrectly calling the defendant a “farmer” instead of a “yeoman,” in similar terms: “When the ruling class acquitted men on such technicalities they helped embody a belief in the disembodied justice of the law in the minds of all who watched. In short the law’s absurd formalism was part of its strength as ideology.”)

For more details on this case, and the recantations, see this.

I have written extensively about the barbarism that lies behind state killing. But I have never before seen anything quite like this statement from Justices Scalia and Thomas. It used to be a fundamental part of the law that it was better to let 99 guilty people go free than to convict 1 innocent person. In fact, the system of criminal justice in this Country was built on this very platform. But now, we have two Supreme Court justices writing that the death penalty can be upheld even when the person executed is innocent, that innocence just doesn't matter. Forget about the fact that if you're killing an innocent person, the person who actually did the crime hasn't been convicted.

That is chilling and simply disgraceful.

And it's another strong reason for ending state killing entirely. The machinery of death is an embarrassment to a civilized nation. Arguments like Scalia's and Thomas's reduce us to barbarians. And we're going to have evil, immoral arguments like these as long as there's a death penalty. That and we're going to continue to make it possible to kill innocent people.