Tag Archive for 'Court'

Mother Spends Night in Jail for Unilateral Decision to Baptize Son

Share on TwitterSubmit to StumbleUpon

Family law issues are often highly emotional and heated, but they don’t usually result in jail time. Stephanie or Stacy Miller, however, spent a night in prison after a Tennessee judge found her in contempt of court for allowing her 12 year old son, Caleb Miller, to be baptized without his father’s permission.

This seeming excess of judicial authority began two years ago, when Stacy and Stephen Miller finalized their divorce. Their divorce agreement included a promise not to make decisions about their son’s religious upbringing without the consent of the other.

In 2011, Caleb agreed to be baptized at his mother’s church. Although his father attended the ceremony, Stephen Miller insists that the baptism occurred without his authorization. Judge Swann, the judge in charge of the case, noted that Stacy Miller, the son’s mother, had failed to respond to mediation attempts prior to the ceremony and handed her a ten day jail sentence, reduced to one day after the criminal contempt of court charges were dropped, though the civil contempt charge remained. Caleb Miller watched as his mother was lead to the local jailhouse in handcuffs due to the claim made by his father.

On its face, the story seems like judicial over-extension. Although family law typically tries to respect both parties in a divorce, the best interests of the children govern any case involving a child. It is difficult to agree that a child watching his mother go to jail through his father’s actions be in the child’s best interest. Stephen Miller has made remarks which display a certain amount of disdain for his ex-wife’s church. The court has no right to enforce that opinion, especially if that opinion might not be in the child’s best interest. It would be a violation of the Federal Constitution’s establishment clause, a clause forbidding the government from favoring one religion over another. Furthermore, Caleb, like all children, is a person with desires and wishes independent of his parents. If Caleb consented to the baptism, then his independent wishes should override any contractual agreement which treats him like a commodity. The child should know what is best for himself, not his parents and certainly not a judge.

There are, however, other factors to consider. Each parent belongs to a different church and wishes to see Caleb make the best possible decision between the two institutions.  Although it is true that enforcement of the father’s view based on its religious roots would be a violation of the Constitution, it would also be a violation of the same document and the same clause if the court enforced the mother’s choice.  The court enforcing Caleb’s baptism looks like an establishment of religion just as much as opposing the baptism would be. The judiciary, however, can enforce a violation of contract agreement, which is exactly what Judge Swann did. The outcome might be the same as an endorsement of the father’s views, but for completely different reasons. Ruling on the contractual aspect of the conflict is the only legal ruling. Moreover, it is the only fair ruling as the law cannot make a distinction between different churches.

As to Caleb Miller’s independent interests, it is true that he is a person separate from his parents and that the law should treat him as such. However, Caleb Miller is still a minor. Although some minors are incredibly mature for their age, society recognizes that some activities should not be undertaken until a certain age for mental maturity to develop in order for proper consent to be established.

I don’t share the Miller’s sense of religious devotion, but I will trust that a commitment to God is an important commitment and a heavy responsibility. Given this context, baptism might be comparable to marriage, a ritual which, in Tennessee, cannot be undertaken by a minor until the age of sixteen. Even at sixteen, however, parental consent is required until the age of twenty-one.

Comparing baptism to marriage might seem like a stretch, but the emphasis the Millers place on baptism makes the comparison significant if not valid. If Tennessee doesn’t permit Caleb Miller at his age to commit his life to another person, then it is doubtful that Tennessee should allow Caleb Miller to commit to a god on his own. Caleb Miller, as a minor, cannot make such important decisions on his own. His parents, his father as well as his mother, represent his best interests. Although the divorce agreement fractured the marriage of his parents, it still governs the parent’s conduct towards their child. Judge Swann may not gain any popularity for his decision regarding Caleb Miller and his parents, but it was a necessary one for an impartial representative of the law to make.

Incoming search terms for the article:

9/11 Terrorist Defense Attorney Wears Islamic Hijab in Court to Respect Clients

Share on TwitterSubmit to StumbleUpon

Attorneys are expected to zealously defend their clients. Cheryl Bormann, however, has taken this expectation to realms previously unheard of.

Bormann represents Walid bin Attash, personal bodyguard and errand boy of the late Osama Bin Laden. Bormann appeared at a hearing last week wearing a traditional Islamic hijab, clothing which conceals all parts of her, with the exception of her face, despite the fact that she isn’t a Muslim. When the judge inquired Bormann why she wore the hijab, she explained it was to show respect to her client’s faith. Bormann then made a motion for other women in the court to dress similarly, as it would distract her client from the hearing and the subsequent trial.

This motion, combined with her client’s erratic behavior, dragged a hearing which should have lasted a couple of hours at most into a thirteen hour ordeal. Attash, who refused to answer the judge’s questions, rejected the translation headphones and launched into periodic prayers, stated that he had been treated poorly in Guantanamo Bay where he has been incarnated since his capture.

This story raises questions about the limits of respect and tolerance. Bormann has the right to dress as she wishes, provided that, as an attorney, her taste in clothing doesn’t interfere with her ability to represent her client. If she believes that wearing a hijab will enable her to communicate with her client more effectively, than I don’t see why she should be forced not to wear it. Bormann’s request that other women dress as she has, however, is another matter all together.

It would be delusional, at best, to believe that the women on the prosecution should comply with Bormann’s suggestion. First, if Bormann has the right to dress as she chooses, then so do other women. As long as all members of the court dress professionally, as defined by the judge, then they should be allowed to wear what they want. Second, the argument that mini-skirts would distract the defendant from focusing on the matters of life and death is flawed. It sounds like the reason Attash can’t control his lust is because of the way women look. This line of reasoning insults men by making men look like pigs unable to control their urges and pins the blame for male irresponsibility on women.

But even if we grant that Attash comes from a culture with a higher threshold for clothing decency, it is obvious from the defendant’s behavior that the prosecution’s clothing isn’t influencing Bormann’s motion. Attash was disinterested in the hearing the whole time. Blaming women’s clothing was a tactic to throw the judge and the rest of the court, not a real concern of the client’s.

However, the most loathsome aspect of the hearing was the fact that family members of 9/11 victims were watching the whole circus unfold. Imagine having lost a parent or a sibling or a child a decade ago to these men’s’ insanity and having to watch, today, an American defense attorney demand respect for the faith of those wrongdoers. A faith which, according to these men, pushed them to commit murder on a grand scale. Many victims would find it respectful if the terrorists were punished without this sideshow.

More importantly though, this hearing was a preview of President Obama’s decision to move terrorists out of military tribunals and into domestic courts for trial. If a hearing like this is being turned into a farce, then the American public can’t expect much from an actual trial. Why should we show respect for these men if they can’t respect us enough to participate in their own trial?

The terrorists of 9/11 are hypocrites of the worst kind, killing over 3000 innocents as a good deed but being afraid of hell for looking at a woman’s legs. Yet we as a country need not sink to their level of hypocrisy. Attash and his fellow terrorists shame Islam with their actions, but Americans honor the Constitution and its values by allowing Attash to be heard in our legal system, as our own principles dictate. That Attash and men like him have a voice full of hypocrisy and venom is not a surprise. The fact Americans allow him to use that vile voice is what separates us from him.

Incoming search terms for the article:

Widow Fights For Right To Bury Husband

Share on TwitterSubmit to StumbleUpon

The American legal system usually doesn’t trouble itself with questions about the rights of the deceased. Most living people have a hard time obtaining legal representation, so giving the dead, who can’t give consent, a voice sounds like a futile use of resources. If a problem does arise around a person who is departed, the deceased typically have relatives who can pursue criminal charges or raise wrongful death claims. So what kind of issue could prompt attorneys to exhume such issues?

In 2004, a widow in Connecticut named Elise Pique was told by most of the city’s cemeteries that they had no room for her late husband. The widow decided, with the help of a licensed funeral director, to bury her husband in the backyard of the property they had owned together. She also had plans to interment herself alongside him when her time came. However, the following year, Pique received a notice from the city to cease and desist the burial. She filed a suit in response, only to lose in trial court. The Appellant’s Court threw the case out, citing that she had not exhausted all her other administrative remedies, such as petitioning for an exemption. Pique’s case is now being appealed to the Connecticut Supreme Court.

On its face, the story sounds like a typical fight between individual property rights and city zoning/health regulations. Interesting stuff, but Pique’s lawyer has another fear which holds deeper legal issues: Pique, as an elderly woman, may pass away soon, leaving the Piques defenseless if the city decides to move their bodies against Mrs. Pique’s wishes. However, the city may be able to do so, as the basis of Pique’s lawsuit was grounded in property rights. When Mrs. Pique passes away, the issue of those property rights against the city’s right to establish zoning laws becomes moot.

Still, the idea that cities can move a person’s body against his or her express wishes simply because that person can no longer speak for themselves seems like a violation of some sort of right, even though legally the dead do not have any identifiable rights. After all, if the government is required to ask for our permission before taking our organs upon death, then something must be stopping the living from treating the dead like garbage to be taken to a landfill.

Granted, the dead can’t have rights like the living. Certain rights, like the right to vote, end once we do. Furthermore, the dead do not have anything else tied to the concept of rights: individuals with rights also have duties and responsibilities. The right to trial by a jury of your peers, for example, comes with the duty to serve on a jury so that someone else can have his right enforced.

The question remains though: once a person dies, who has the right to oversee that person’s body, if anyone? I don’t think it is reasonable to assume the state should, as the state is frequently challenged when it attempts to regulate or control a human body. Issues ranging from abortion to organ donation demonstrate that state oversight of the human body at any stage of life (or close to life) is questionable.

Living relatives might be a good candidate for custodians of a human body after life. Assuming that the persons were close, relatives might know the person’s mind better than anyone else. Certainly the Pique case demonstrates this: Mrs. Pique is in charge of her husband’s physical body in the absence of Mr. Pique’s presence.

However, allowing living relatives to bear the rights of a person’s body after death raises other issues. Living relatives are not always perfect representatives of the person’s will. As independent people, relatives do have interests outside of the deceased’s wishes. What if the person does not have any relatives who might come forth to claim the body? What if two or more relatives of the same pedigree, such as a wife and a mother, are in conflict about the corpse’s status?

Perhaps it might be best to just follow a person’s instructions after death. There’s no second guessing about what that person might have wanted and no dispute as to whose interests the instructions actually serve. Sadly, the two problems here are twofold: First, the person may not have left directions or may not have anticipated the questions raised upon their passing. Second, as the Pique story demonstrates, those instructions might be ignored anyway.

This is why Elise Pique’s story is a moving one: The case demonstrates the integrity of the human body regardless of other matters. Such integrity for the human body ought to be maintained except in the most suspect of circumstances.

Incoming search terms for the article:

Big Step Towards Use of Cameras in the Courtroom

Share on TwitterSubmit to StumbleUpon

The use of cameras in the courtroom has always been a hotly debated topic.  It took a long while before still photography was allowed in the courtroom; now all fifty states in many circumstances allow video recording during court sessions.  On the other hand, federal courts are still very restrictive when it comes to video recordings of hearings.  Recently, a new experimental program is pushing the limits of what is acceptable in terms of digital camera recordings in U.S. courtrooms.

The Administrative Office of the U.S. Courts is pushing a pilot program involving 14 different courtrooms across the country.  The programs will allow the videotaping of selected trials in civil courtrooms.  The recordings are to be digitally uploaded to a government website and made available for the public to view.   Accordingly, many lawyers and judges are enthusiastic about cameras in the courtroom and what this could mean for the judicial branch as a whole.

Advocates of the program usually cite “education” as one of the main benefits of the use of camera recordings during trial.  That is, allowing the public to view recordings of courtroom sessions would serve to educate the average citizen on how courtroom proceedings are actually run.  I agree with this logic, since the average citizen gets their idea of court hearings either from the O.J. Simpson trial or from Lindsay Lohan’s legal woes.  Suffice to say, celebrity trials don’t really provide the public with a well-rounded or even accurate picture of trial proceedings.  So, the idea of cameras in the courtroom can have the effect of curbing some of the sensationalism associated with celebrity trials.

Another argument in support of the pilot program is that the recordings will help with judicial accountability and transparency.  Unlike the other branches of government, the judiciary has been largely resistant to video recordings of sessions.  This is especially true of the federal court system, which has been video camera-shy for ages now.  It could be that the lack of cameras in the courtroom allows lawyers to get away with some questionable behind-the-scenes conduct, and contributes to judges legislating from the bench.  So having the hearings video taped would supposedly expose/reduce some of this.

On the other hand, one of the main arguments against recording court sessions is that the presence of cameras might change the courtroom dynamic.  For example, a lawyer might be hesitant to argue a certain legal theory because they become self-conscious about how the public might perceive them.  Jurors and witnesses might also be intimidated knowing that they would be on camera.  Or, on the other end of the spectrum, there is concern that a lawyer (and even a judge) might become overly dramatic if they know that they’re in the spotlight.  Given some of the courtroom dramatics involved in past celebrity lawsuits, there is some basis to this argument.

In my opinion, I like the idea of this new program to record and upload court hearings for public viewing.  As Chief Judge Kozinski of the Ninth Circuit put it, it’s time for courts to get with the times and take advantage of the different technologies available to us.  Critics argue that the written transcripts and courtroom sketches are enough for the public to work with.  But I think it would be a sorely missed opportunity not to be able to watch trials through a full video presentation (though I do agree that camera footage needs to be monitored so that courts don’t reinforce the circus stereotype associated with media trials).

Many of the concerns listed here are minimized by several elements inherent in the pilot program.  First, the cameras are not media cameras, but will be operated and regulated by court staff.  And the equipment will be unobtrusive (like the “eyeball” cameras you often see implanted in the ceilings of some stores- not like the bulky cameras we have fashionably pictured here).  Courts will also limit the recordings to cases that don’t involve sensitive issues like child abuse, sexual assault, or trade secrets.  Lastly, to help with privacy concerns, all participants in the trial should consent to the videotaping before it occurs.

And one aspect that isn’t mentioned in the midst of this debate is the prospective advantage for law students.  I remember during law school, we watched some very limited footage that was supposed to help us students with our litigation skills.  But it would have been nice to be able to independently browse different trials to see how lawyers actually argue in different types of case settings.  Also, having a database of actual trial footage can help those who may be contemplating a law career make a choice of whether to invest in law school or not.

On a final note, I’d like to leave you with bit of legalese that I found very amusing.  The legal phrase “in camera” comes from the Latin word meaning “chambers”.  It refers to a trial that’s conducted in private without the public watching and without coverage by the press.  How ironic!  If this new pilot program catches on nationwide, the definition of “in camera” might well be turned on its head.

Incoming search terms for the article:

Is There a Right to Use Marijuana for Religious Purposes?

Share on TwitterSubmit to StumbleUpon

The current federal policy on marijuana is, to say the least, confusing. When President Obama took office, his Department of Justice said that it would not make prosecutions for the possession of marijuana a major priority, and that medical marijuana operations that are legal under state law will not be a target for federal prosecution.

Supporters of marijuana legalization or decriminalization were pretty excited, believing that, after years of federal crackdowns, a president was finally taking (in their view) a more sensible approach to marijuana.

However, over the last year or so, the federal government seems to have taken a harder line on marijuana. While there’s no question that the drug is illegal under federal law, and that federal law trumps state law (so the federal government can still prosecute people who use medical marijuana, even if they’re complying with the laws of their state), the federal government does have a good deal of discretion in deciding which cases it wants to prosecute, and under what circumstances to do so.

This controversy usually comes up in the context of medical marijuana. After all, there is mounting evidence that marijuana, while certainly not a cure-all, has a wide range of medical uses that are, at the very least, worth exploring. For example, it is one of the most powerful anti-nausea drugs known, which makes it a very effective treatment for some of the side effects of chemotherapy, greatly improving the quality of life for some cancer patients. And there is some evidence (though it’s far from conclusive) suggesting that it may even be able to prevent or treat some forms of cancer.

So, it’s not surprising that a lot of people get a little riled up when the federal government starts shutting down medical marijuana dispensaries.

However, there’s another non-recreational use of marijuana: religious rituals. Many indigenous religions treat marijuana as an entheogen (a substance that triggers what its user believes to be a religious experience), and use it ritualistically.

And as you probably know, the First Amendment enshrines the right of all Americans to freely exercise whatever religion they like.

So, a Native American group that uses marijuana for religious purposes should be exempt from laws against marijuana use, right? Not exactly. The Supreme Court has long ago held that laws of general application (i.e., laws that apply to everyone) that happen to place a burden on some religious practices are generally valid, though they do still warrant some scrutiny under the Constitution.

These generally-applicable laws are typically subject to “rational basis” review, meaning the government only needs to show that the law is related to a valid government interest. And whether you agree with them or not, most courts have held that preventing illegal drug use is definitely a valid governmental interest.

The Native American group sued the DEA in federal court after it seized a FedEx box containing marijuana, with a member of the group as its intended recipient. A federal district court dismissed the case. However, the 9th Circuit Court of Appeals just ruled that the case can continue. The appeals court is not handing the plaintiffs a victory – it’s just saying that their lawsuit should be allowed to proceed.

The court largely relied on the Religious Freedom Restoration Act, which requires federal courts to examine laws that burden religious practices under a more stringent “strict scrutiny” standard, requiring that the government prove that any law that substantially burdens religious practices be justified by a compelling government interest, and that the law is narrowly tailored to advance that interest.

The government argued that the religious group did not have a right to bring the lawsuit, because the Department of Justice had no plans to prosecute any of its members for transporting or using marijuana. In its ruling, the appeals court disagreed, holding that the threat of prosecution is not required to give the religious group standing to sue, because the government had already seized their marijuana, raising a legitimate issue over whether or not it had a right to do so.

The lower court will now have to rule on the merits of the case, deciding whether there is a constitutional and/or statutory right to use marijuana for religious purposes, laws generally prohibiting its use notwithstanding.

This is an interesting issue. Instinctively, I’m inclined to believe that there should be an exception to marijuana laws for religious use, since many different religions have used it in their rituals for thousands of years. However, this view is largely informed by my strong belief that marijuana should be decriminalized altogether.

Obviously, when the court is making its decision, the judge’s view on whether or not marijuana should be legal generally should not enter into his or her decision-making process. Of course, not being a judge, I have the luxury of letting my views on these issues be informed by whatever factors I see fit.

But taking a more detached view, I still don’t see why the First Amendment and the Religious Freedom Restoration Act wouldn’t protect the rights of people to use marijuana, or most other drugs that are otherwise illegal, for bona fide religious purposes, provided that the drugs are used in moderation, and possibly under the supervision of people who will remain sober, to ensure that the drug use poses absolutely no threat to anyone who is not directly involved in it (to make sure that nobody drives under the influence, for example). I don’t think the overall goals of anti-drug laws would be seriously impaired by carving out a narrow exception.

Incoming search terms for the article: