The intersection between freedom of association and government employment can be tricky to navigate. A teacher can’t be fired for exercising her right to support the NAACP, but what if the teacher joins a cult that advocates the sexual enslavement of children? The Constitution protects the right to associate with others for the “vigorous advocacy” of “lawful ends” (NAACP v. Button), but it doesn’t protect membership in a criminal conspiracy.

Standing between these extremes is Robert Henderson, who lost his job as a state trooper when the State of Nebraska discovered his membership in a white supremacist organization: the Knight’s Party, an offshoot of the KKK.

The Web site's sponsor, the Knights Party of Harrison, Ark., is run by Thomas Robb. [Arbitrator] Caffera described the Knights Party as an attempt to "cloak the 'friendlier face' of the Knights Party from its ultimate corporate parent, Robb's faction of the KKK."

This “friendlier” version of the KKK may or may not advocate unlawful behavior, but white supremacy presupposes the suppression of equal rights for nonwhites. Since police officers are sworn to uphold the law (including the Constitution), it’s easy to understand Nebraska’s concern that Henderson’s interest in subverting civil rights renders him unfit for his job.

Legally, I don't think the woman had a shot. Nonetheless, it's good news that the Supreme Court has decided not to hear the appeal of the woman who was the plaintiff in a companion case to Roe v. Wade.

The Supreme Court on Tuesday turned aside the case of Sandra Cano, one of the women behind the legalization of abortion, who had sought to reverse the victory she won 33 years ago.

Cano says she never wanted an abortion and that her difficult early life resulted in her becoming the anonymous plaintiff in Doe v. Bolton, the lesser-known case which the justices ruled on the same day in 1973 as the landmark Roe v. Wade.

by TChris

A prosecutor got herself tossed from a case because its facts were too similar to those of a crime novel she'd authored and was promoting at the time of the prosecution. The defense raised a "novel" question in seeking her disqualification.

In January, Joyce Dudley, a deputy district attorney in Santa Barbara, published a crime novel called "Intoxicating Agent." Its heroine, Jordon Danner, has the same initials and the same job as Ms. Dudley, and the novel concerns a rape case with echoes of a real one. In both, the victim said she had been sexually assaulted after being given an intoxicating drug. ...

"She has a disabling conflict of interest," Justice Kenneth R. Yegan of the California Court of Appeal wrote of Ms. Dudley for a unanimous three-judge panel. Ms. Dudley must be disqualified, Justice Yegan continued, because the defendant, Massey Haraguchi, "is being prosecuted for raping an intoxicated person while the prosecutor is promoting her novel involving the identical charge."

Justice Yegan wrote that Ms. Dudley's desire for money and fame might tempt her to throw the book at the defendant, as it were.

This just in from the ACLU by e-mail (will be available here soon):

The American Civil Liberties Union today welcomed a federal court ruling that the Patriot Act threatens the free speech and religious freedom rights of groups who have reason to believe they are targeted by the law. Today's ruling confirms what we have said all along - that our clients are suffering concrete harm as a result of the Patriot Act," said ACLU Associate Legal Director Ann Beeson.

At issue in the case was the ACLU's challenge to Section 215 of the Patriot Act, passed in October 2001, which radically expanded the FBI's power to demand records and personal belongings of innocent people living in the United States, and gagged recipients from disclosing the demands to anyone. The national ACLU and the ACLU of Michigan filed the case in July 2003 on behalf of advocacy and community groups from across the country whose members and clients believed they were the targets of investigations because of their ethnicity, religion and political associations.

by TChris

Judith Clark, a Weather Underground member charged with acting as a getaway driver in the 1981 robbery of an armored car that resulted in three deaths, asked to represent herself at her trial. When that request was granted, Clark refused to participate in the trial, sitting in her cell while the prosecution presented its case.

U.S. District Judge Shira Scheindlin ruled yesterday that Clark is entitled to a new trial. It's one thing for a court to allow a defendant to represent herself, but quite another to allow a trial to go forward when the defendant's interests are completely unrepresented. Defendants are allowed to represent themselves only if they're capable of abiding by court rules, and Clark showed herself unable to follow the primary rule: show up for the trial.

Clark was sentenced in 1983 to 75 years in prison.

by TChris

The Court of Appeals for the Seventh Circuit today invalidated an Illinois law -- on the books since 1980 -- that has effectively prevented independent candidates from running for the state legislature. To qualify for a listing on the ballot, independent candidates in Illinois must obtain signatures that equal 10 percent of the votes cast in the last general election, and they must do so at least 323 days before that election. These requirements, said the court (pdf), are too onerous.

In combination, the ballot access requirements for independent legislative candidates in Illinois--the early filing deadline, the 10% signature requirement, and the additional statutory restriction that disqualifies anyone who signs an independent candidate's nominating petition from voting in the primary--operate to unconstitutionally burden the freedom of political association guaranteed by the First and Fourteenth Amendments. Ballot access barriers this high--they are the most restrictive in the nation and have effectively eliminated independent legislative candidacies from the Illinois political scene for a quarter of a century--are not sustainable based on the state's asserted interest in deterring party splintering, factionalism, and frivolous candidacies.

A North Carolina appeals court has reversed the denial of a suppression motion which had yielded 130-165 months to the defendant. The text of the opinion is here.
The money quote is on page 9:

"We conclude that Officer Correa exceeded the scope of defendant's consent when he inspected defendant's genitals."

[Hat tip Scribe.]

Some good news out of Hawaii today. The Hawaii Supreme Court has held that an employer can't fire an employee just because of a past criminal conviction. There must be a rational relationship between the conviction and the job duties.

The high court overturned a lower court decision Wednesday that threw out an anti-discrimination complaint filed by Jon S. Logan Wright in April 2004. In it he claimed the Kahului Home Depot fired him after a background check conducted more than a year after he began working revealed he had a 1996 Nevada drug conviction. In that case he served no jail time and was placed on probation, which ended in November 1997.

Logan had passed numerous drug tests showing he was clean.

by TChris

Christine Wilhelm drowned her son in a bathtub, and tried to drown her other son. Common sense might cause one to wonder whether this behavior was the product of mental illness, but it was only after Wilhelm's convictions were reversed last week (decision in pdf here) that the prosecutor, Patricia DeAngelis, said that she is "considering the possibility of giving a plea of not guilty by reason of insanity." What took so long?

Wilhelm has been diagnosed as a paranoid schizophrenic but DeAngelis had pressed for a 50 year to life prison sentence and denied her mental health treatment.

This columnist notes that many have criticized DeAngelis for "getting convictions at all costs."

Good news for pain doctor William Hurwitz. The 4th Circuit Court of Appeals has overturned his conviction and 25 year sentence for drug-trafficking because the trial judge failed to give a "good faith" instruction to the jury.

The decision again galvanized the national debate that the Hurwitz case had
come to symbolize: whether fully licensed doctors prescribing legal medication to patients in chronic pain should be subject to prosecution if their patients abuse or sell the drugs. Patient advocate groups strongly supported Hurwitz and expressed concern that his conviction would have a chilling effect on pain doctors.

....Jurors convicted Hurwitz on 50 counts of a 62-count indictment, including conspiracy to distribute controlled substances. They acquitted him on nine counts and deadlocked on three. Hurwitz was sentenced to 25 years in prison.

The text of the opinion is here(pdf).

The 8th Circuit Court of Appeals has ruled that driving with cash is evidence of drug activity and may be seized. The money had been seized during an Indiana traffic stop.

Associates of Gonzolez testified in court that they had pooled their life savings to purchase a refrigerated truck to start a produce business. Gonzolez flew on a one-way ticket to Chicago to buy a truck, but it had sold by the time he had arrived. Without a credit card of his own, he had a third-party rent one for him. Gonzolez hid the money in a cooler to keep it from being noticed and stolen. He was scared when the troopers began questioning him about it. There was no evidence disputing Gonzolez's story.

The trial court had ruled for Gonzales. The 8th Circuit reversed:

"We respectfully disagree and reach a different conclusion... Possession of a large sum of cash is 'strong evidence' of a connection to drug activity."

At least there was a dissent. You can read the opinion here (pdf). [hat tip Patriot Daily.]

by TChris

Our ever-defiant president intends to continue wielding unbounded and unchecked executive power, regardless of what a court tells him about the law, and if you don't like it, you're naive.

"I would say that those who herald this decision simply do not understand the nature of the world in which we live," Mr. Bush said in a question-answer session at Camp David, Md.

"This decision" refers to Judge Taylor's declaration that the NSA wiretapping program is unconstititutional (discussed here and here at TalkLeft). "Those who herald the decision" understand the Constitution and the obligation of the president to obey the law. It's really pretty simple.

The president resorted to his tired argument, "if Al Qaeda is calling into the United States, we want to know why they're calling." So do we. That's why we want the president to hasten to a FISA court and get a warrant that will help him intercept suspicious calls. His stubborn insistence that he don't need no stinkin' warrant has nothing to do with national security and everything to do with an unprecedented assertion of executive domination over the other -- supposedly coequal -- branches of government.