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Presumed Mentally Ill

December 18, 2024 by Peg Leave a Comment

Luigi Mangione is presumed by the Manhattan New York District Attorney Alvin Bragg to have murdered United Healthcare Chief Executive Officer Brian Thompson and has had him indicted by a Grand Jury for First Degree Murder. If the state does not presume Mangione guilty, it should not have charged him. Of course, the generic legal system is supposed to presume Mangione innocent, good luck with that, but it’s a good theory.

As for me, I know only what CNN, MSNBC and FOX News tell me about the case of December 04, 2024. Therefore, based on my experience with cable news, I conclude I should not presume anything except that Mr. Thompson was shot in the back by a masked person; after all, I have seen that in countless showings on television with my own eyes. And even Mr. Thompson’s identification, medical condition and employment are only known to me via hearsay. Now with AI, even my eyes cannot be afforded unquestioned reliability. The general public has no legal obligation to presume anything unless they happen to be selected to serve on a jury that may eventually try Mangione.

As for Mr. Mangione’s new attorney in his New York case, she has been described by the media as “high powered” and high profile. Attorney Karen Friedman Agnifilo is either Clarence Darrow or Shakespeare’s Shylock if one pays heed to the national media. Regardless, before she agreed to represent Mangione she had publicly opined on mental illness as a defense Mangione might advance. Now, should she decide to appear in Court for Mangione, she might advance in the case the theory that Mangione suffered from mental illness at the time of the shooting; i.e., that the evidence proves it is more likely than not at the time of the shooting Mangione suffered from a mental illness and the shooting was done as a result of that mental illness.

I, nor you either Gentle Reader, is in a position to assign legal liability to Mangione. Under our system of justice as governed by the law of New York state, a judge or jury may end up deciding whether Mr. Mangione is legally responsible for Mr. Thompson’s death. Each of our fifty states has its own statutory scheme to address criminal liability for those who claim their otherwise criminal actions should be processed as a case of diminished responsibility. Each state’s system is both factually and medically sensitive and requires that one charged with a crime first raise the defense of diminished capacity via a pleading filed before the Court and then carry the burden of proving that defense by a preponderance of the evidence.

The presumption in criminal cases is that one charged with a crime did not act as a result of diminished responsibility and that the defendant did understand what they were doing and had the mental ability to conform their actions to the law. The burden of proof on the issue of diminished responsibility, by a preponderance of the evidence, is upon the defendant. The law’s requirement that a possibly mentally ill person must prove his or her mental illness, is the only way our law has so far found to process the mental illness defense. I confess I do not see how society could carry such a burden and still process the countless cases such a defense might engender. Therefore, the burden to prove mental illness at the time of the crime must rest on the defendant.

If Mangione should be found by a Judge or Jury to have committed the shooting and that he was of legally diminished capability when he did so, the State of New York will have the burden of incarcerating him in a medical facility until he is “cured” or until he passes away. Regardless, the legal system will be obligated to process the case pursuant to legal and medical statutory requirements. Also, no matter how the case is finally resolved, I predict about as many people will be aggrieved as will be happy.

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Filed Under: America, Gavel Gamut, Judicial, Law, News Media Tagged With: Alvin Bragg, Brian Thompson, burden of proof, diminished responsibility, Gentle Reader, high powered attorney, high profile attorney, James M. Redwine, Jim Redwine, Karen Friedman Agnifilo, Luigi Mangione, mental illness theory, preponderance of the evidence, presumed mentally ill

The Foundation

August 9, 2024 by Peg Leave a Comment

I received my early secular schooling from the public schools in Pawhuska, Osage County, Oklahoma. My religious education was received from my family and the preachers and Sunday School teachers at the First Christian Church (Disciples of Christ) in Pawhuska. There was a great deal of osmotic transfer in both directions, but my church never seeped into issues of government and my schools never wandered into matters of faith.

My favorite Sunday School teacher was Violet Willis who, as a child, had been taken from her Osage tribal home and indoctrinated into Christianity at the government school at Chilocco. My favorite high school American History teacher was Mike Burton who never let questions of historical fact be conflated with matters of religious faith.

My foundations of faith and fact were scrupulously kept separate by the responsible adults, both secular and sectarian. Science prevailed in public school classrooms and lessons of morality were the focus at home and church. Never did I hear nor see any religious material or teaching at school; that was the province of the clergy.

At school I did receive twelve years of education in the history and foundations of America. I learned that our Founders rebelled against religious tyranny and monarchial rule. The separation of our three equal branches of government and especially the separation of religion and government were the clarion call of our republican form of democracy. Although we had to be ever vigilant to keep faith from seeking to control fact.

Such issues as the Salem Witch Trials, the Scopes Monkey Trial and efforts to slip or demand the instillation of a particular doctrine into public curriculum are constant danger signs that our democracy is fragile. Our Founders feared religious intoleration or practice. The very first of our United States Bill of Rights demands: 

“Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof.”

And to their credit, those Founders of Oklahoma’s Constitution provided in Article II of Oklahoma’s Bill of Rights:

“Public money or property–use for sectarian purposes. No public money or property shall ever be appropriated, applied, donated, or used, directly or indirectly, for the use, benefit or support of any sect, church, denomination, or system of religion, or for the use, benefit, or support of any priest, preacher, minister or other religious teacher or dignitary or sectarian institution as such.”

No god of any religion is mentioned in the U.S. Constitution and neither the Bible nor the Ten Commandments had any place in our Founders’ careful crafting of our form of government. If our public schools are to post and teach our history, they should post the Bill of Rights and explain to America’s students how our country has managed to survive as a democracy for well over 200 years because it has avoided allowing any religion to control our future leaders.

Perhaps, Oklahoma’s State Superintendent of Education, Ryan Walters, who on June 27, 2024 during a meeting of the State Board of Education called for the mandatory teaching of the Bible and the posting of the Ten Commandments in every fifth through twelfth grade public-school classroom in Oklahoma, was confused. The Oklahoma law that in 2012 established his position (70 O.S. 2011, §3-107) defines the powers and duties of the elected State Superintendent:

“Upon proper request, the State Superintendent shall advise school district superintendents (concerning) school laws, including court decisions, Attorney General opinions and ‘other informative matter relating to the school laws as deemed appropriate.’”

The United States of America was not founded on any religion’s dogma or doctrine and, in fact, it was specifically immunized against the dangers thereof. I thank my church and school teachers for understanding that and informing me.

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Filed Under: America, Democracy, Education, Gavel Gamut, Law, Religion Tagged With: first United States Bill of Rights, history and foundations of America, James M. Redwine, Jim Redwine, Oklahoma Bill of Rights, religious education, Ryan Walters, Salem Witch Trials, Scopes Monkey Trial, secular education, separation of church and state, Sunday School, three equal branches of government, United State of America not founded on an religion's dogma or doctrine, Violet Willis

Founding Documents

June 21, 2024 by Peg Leave a Comment

Louisiana Governor Jeff Landry signed House Bill 71 into law Wednesday, 17 June 2024. Governor Landry stated, “If you want to respect the rule of law you gotta start from the original law giver which was Moses, … he got his commandments from God.” Louisiana HB 71 decrees that every public school in Louisiana and every non-public school that receives state funds shall display the Ten Commandments in every building and every classroom it uses.

 HB 71 sets forth its version of the Ten Commandments that must be displayed as follows:

“The Ten Commandments

I AM the Lord thy God.
Thou shalt have no other gods before me.
Thou shalt not make to thyself any graven images.
Thou shall not take the Name of the Lord thy God in vain.
Remember the Sabbath day, to keep it holy.
Honor thy father and thy mother, that thy days may be long upon the land which the Lord thy God giveth thee.
Thou shalt not kill.
Thou shalt not commit adultery.
Thou shalt not steal.
Thou shalt not bear false witness against thy neighbor.
Thou shalt not covet thy neighbor’s house.
Thou shalt not covet thy neighbor’s wife, nor his manservant, nor his maidservant, nor his cattle, nor anything that is thy neighbor’s.”

Louisiana schools may expend public money to install the documents or may solicit or accept donations for those purposes. The Bill makes no attempt to discuss the contents of these provisions nor does the Louisiana Legislature explain why it posits the Ten Commandments played any role in forming the law of the United States.

However, the imminent philosopher of myth and law, Joseph Campbell, explained how our Founders looked to the Enlightenment for guidance, not to the Bible or any religion:

“Now let us ask: what about the symbolism of the Bible? Based on the Old Sumerian astronomical observations of five to six thousand years ago and an anthropology no longer credible, it is hardly fit today to turn anybody on.

In fact, the famous conflict of science and religion has actually nothing to do with religion, but is simply of two sciences: that of 4000 B.C. and that of A.D. 2000.

….

The Biblical image of the universe simply won’t do anymore; neither will the Biblical notion of a race of God, which all others are meant to serve (Isaiah 49:22-23; 61: 5-6, etc.) nor again, the idea of a code of laws delivered from on high and to be valid for all time

….

The problems of our world are not even touched by those stone-cut Ten Commandments that we carry about as luggage and which, in fact, were disregarded in the blessed text itself, one chapter after they were announced (Exodus 21:12-17, following 20:13).”

Campbell goes on to explain how our modern legal world is not and cannot be based on religion:

“The modern Western concept of a legal code is not of a list of unassailable divine edicts, but of a rationally contrived, evolving compilation of statutes, shaped by fallible beings in council, to realize rationally recognized social (and therefore temporal) aims.”

Joseph Campbell, Myths to Live By, 1972,
ISBN 0 14 019.461 4, at pp. 88-89.

Or as political commentator James Carville more succinctly and prosaically stated about the HB 71and similar legislation, “It is the dumbest waste of time I’ve ever seen in my life!”

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Filed Under: America, Authors, Democracy, Gavel Gamut, Law, Religion Tagged With: God, Governor Jeff Landry, House Bill 71, James Carville, James M. Redwine, Jim Redwine, Joseph Campbell, Moses, Ten Commandments, the Enlightenment

Democracy At Risk

January 9, 2024 by Peg Leave a Comment

Lake James, Indiana. Photo by Peg Redwine

Donald Trump did not find fault with his election victory over Hillary Clinton in 2016 even though many Americans were astonished. However, four years later President Trump and many others questioned President Joe Biden’s victory. Some Trump supporters even marched and more on January 06, 2021 in protest as still sitting President Trump verbally urged them on.

Former President Trump is now seeking the presidency again, but some are protesting his right to do so. These never Trumpers are asserting that Trump is now prohibited from running by Section 3 of the Fourteenth Amendment to the United States Constitution that provides:

“No person shall be a Senator or Representative in Congress or elector of President and Vice-President, or hold any office, civil or military, under the United States, or under any State, who, having previously taken an oath, as a member of Congress, or as an officer of the United States, or as a member of any State legislature, or as an executive or judicial officer of any State, to support the Constitution of the United States, shall have engaged in insurrection or rebellion against the same, or given aid or comfort to the enemies thereof. But Congress may by a vote of two-thirds of each House, remove such disability.”

As many of us learned in high school, the 13th, 14th and 15th Amendments to the Constitution were ratified by Congress soon after the Civil War. Generally, the 13th prohibited slavery, the 14th provided for Due Process for Blacks, including citizenship, while the 15th gave Black men the right to vote.

I do not know about you, Gentle Reader, but I had never given a moment’s thought to Section 3 until after January 06, 2021 and until former President Trump announced his intention to run again. I do recall Alabama Governor George Wallace who defied the United States Supreme Court’s decision of 1954 in Brown vs The Topeka, Kansas Board of Education that ordered an end to school segregation. In Wallace’s inauguration address on January 14, 1963 he declared, “…segregation now, segregation tomorrow, segregation forever”. Yet, Wallace was allowed to run for the presidency only five years later in 1968 without anyone raising the 14th Amendment. America’s voters made their free democratic choice and rejected Wallace’s racist position.

The first time I heard mention of Section 3 being used to keep Trump off the ballot I remember my bemusement. Then, as the tiny tinkling of the anti-Trump candidacy tocsin became a loud tolling of ballot disqualification, my bemusement became concern.

Some who advance the preemption of Trump’s second term warn that our democracy would be in danger if he is reelected. These self-anointed saviors assert that to preserve our democracy we must assure the MAGA fanatics cannot steal our self-government. And the best way to do this is to disenfranchise them by eliminating their candidate from the ballot. Well, you see the oxymoron of saving democracy by denying it to those they dislike. Yet, that is the petard the Section 3 crowd is raising. Of course, they know that just as with Bush vs. Gore 2000, the matter will end up in the tender mercies of the majority of the U.S. Supreme Court. How did that work out for our democracy? Can you say Iraq War?

Politics is not Bean Bag. If you have never run for political office and lost, you may not appreciate the visceral impact it has. Most people have played on or supported some sports team and have experienced the disbelief and angst from some loss they attribute to a bad call by an umpire or referee. Well, I assure you, Gentle Reader, a loss of an election is a much more gut-wrenching experience.

As one of my brothers told me after he lost his only foray into local politics, “I cannot understand how I lost, everyone I talked to told me they voted for me”. No matter how graciously a losing candidate handles a loss, many of them wonder if, in fact, they won and somehow the outcome should have been otherwise. Ergo, Donald Trump was a part of that, “I can’t believe it!”, tradition. Was he wrong? Was he a poor sport? Was he a jerk? Yes, yes and yes. Did he take up arms against the United States? No.

Should we attempt to save our democracy by keeping him off the ballot? No! Let the voters decide. Part of democracy means allowing people to make poor choices or, at least, choices we dislike. However, democracy means making sure we all have the right to do so.

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Filed Under: America, Democracy, Elections, Gavel Gamut, Law, Presidential Campaign, Slavery, United States Tagged With: Brown vs The Topeka Kansas Board of Education, democracy, Donald Trump, Gentle Reader, George Wallace, Hillary Clinton, James M. Redwine, Jim Redwine, presidential election, United States Constitution Fourteenth Amendment Section 3

Mental Gymnastics

September 18, 2023 by Peg Leave a Comment

Former President Donald Trump is facing both state and federal charges in several courts of law. These charges present difficult challenges to the judges in each case with the most important judicial task being to guarantee that all parties receive a fair trial. However, that duty to the people directly impacted by each case must be carried out without violating the right that our Founders knew to be the right that was essential to guaranteeing all of our rights, Freedom of Speech.

While several of the Founders championed freedom of expression as fundamental to democracy, Benjamin Franklin, a newspaper publisher himself, led the debate:

“Freedom of speech is a pillar of a free government;
When this support is taken away, the Constitution of
a free society is dissolved, and tyranny is erected on its ruins.
Republics derive their strength and vigor from a popular
examination into the action of the magistrates.”
 

Benjamin Franklin was born in 1706 and was immersed in the printing of politically focused newspapers in Philadelphia when fellow printer John Peter Zenger was prosecuted for libeling British Governor William Cosby in New York City in 1734. Zenger was jailed pending his jury trial but when he was tried the jury acquitted him in spite of the clear violation of the British Colonial law. The jury made up its own mind in spite of an atmosphere of bias from the government.

Currently, some of the judges in Donald Trump’s cases have fashioned gag orders that threaten punishment if Trump says things about the possible evidence, the witnesses, the prosecutors or the judges. The reasons given by the judges for these gag orders all claim they are to protect the parties and witnesses from attempted coercion and to prevent the tainting of any future jury pool. In other words, the judges have no faith that potential jurors can do what judges must do in every case. That is, put aside any irrelevant matters and decide Trump’s cases only on the law and the facts.

As a judge for over forty years I find this lack of confidence in jurors ill founded. Judges decide almost all cases without a jury if there is no plea agreement in criminal cases or no settlement in civil cases. In other words, people have confidence a judge in a criminal case may receive an indictment from a grand jury the judge impaneled or approve a charge brought by a prosecutor and still decide the case. Or, a judge may issue an arrest or search warrant based on in depth out of court statements and then set that information aside and still fairly decide guilt or innocence. If one person, a judge, can do this so can twelve. Of course, statements by parties that threaten physical harm should not be tolerated. However, comments about the evidence, the prosecutor or the judge that offend the judge come with the robe, even if those comments are unfair, unkind and untrue. Just ask John Peter Zenger, Benjamin Franklin, Thomas Jefferson, James Madison, etc., etc.

Jurors can be trusted, just as judges can be, to do their duty. CNN or FOX News can be eliminated from the jury room. The voir dire procedure is designed to exclude potential jurors who cannot do that. Does the legal system occasionally fail and a biased judge or jury render a decision based on pre-trial publicity or emotion? Unfortunately, that happens. But to deny America the vital protection of the First Amendment in an attempt to eliminate human frailty is a fool’s errand and an affront to our Sixth Amendment, Right to Trial by Jury.

Gentle Reader, I would like to share with you one of my own experiences as judge as an example of the public’s faith in the ability of a judge, or jury, to set aside bias and still fairly handle a case. Now, I might not process this case today the way I did a few years ago but I will let you be the judge of what happened then. Anyway, what follows is true, if perhaps, somewhat askew legally.

When I received my honorable discharge from the United States Air Force the only job I could find in Indianapolis, Indiana where I lived with my wife and son was selling P.F. Collier Encyclopedias door-to-door. We only owned one car, a 1956 Ford Fairlane convertible. I really liked that car but we decided we needed a new one so I sold it to a guy I worked with on the basis he would pay me each week. Well, the week after I gave him the keys he disappeared with my car. I did not see him again for twenty-five years when he appeared in my courtroom charged with a home burglary.

I had forgotten his name and he surely did not recognize mine. He and his attorney and the prosecutor had filed a plea recommendation and requested that I approve it based on a pre-sentence report prepared by my probation department. After reading the report I realized this man in front of me had stolen my car. When I confirmed that fact, I told him I would recuse and get him another judge. He said, “Ah, Judge, were you going to take the deal before you remembered who I was?” I said, “Yes”. He said, “Well go ahead.” I said, “No, go out and talk to your attorney”. He did. Then he and his attorney and the prosecutor said, “Judge, we really want you to stay on the case so we can get this done now”. I said, “Okay, but what did you ever do with my car?” He said, “Well, when we got to Oregon it quit running and my wife had me cut off the top and fill it with potting soil then she made a planter out of it.”

Now, I know I had other options but one thing this case showed me was a judge or jury can be fair even when personally offended. So suck it up judges and have faith the jurors will not be any less pure than you.

 

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Filed Under: America, Circuit Court, Democracy, Gavel Gamut, Judicial, Law Tagged With: Benjamin Franklin, CNN, Donald Trump, fair judges, fair juries, Founders, Fox News, Freedom of Speech, gag orders, Gentle Reader, James M. Redwine, Jim Redwine, John Peter Zenger

Sound And Fury

August 2, 2023 by Peg Leave a Comment

Photo by Peg Redwine

William Shakespeare could have been describing Congress instead of life when he wrote:

“It is a tale told by an idiot, full of sound and fury signifying nothing.”

Macbeth (Act 5, Scene 5)

The U.S. Congress has assumed for itself the role of ethics advisor to the U.S. Supreme Court. Congress is so upset about recent Court decisions it is demanding that the Court adopt a binding code of judicial conduct (the U.S. Supreme Court has none now). Congress as the arbiter of Court morality brings forth an analogy of Jezebel as the paragon of Babylon.

It is not that the Supreme Court justices have not often acted unethically, it is just not a rational solution to turn to Congress for our relief. Real and permanent reform will not come from Congressional hearings and legislation nor does human nature suggest it will come from within the Court regardless of any ethical rules.

On December 8, 2022 in a hearing before the House Judiciary Subcommittee on Courts, Intellectual Property and the Internet a representative of the bipartisan Project on Government Oversight testified:

“Every justice who has served in the last decade has done something that has raised questions about propriety and impartiality.”

 Then documented cases of unethical conduct by individual Supreme Court justices were submitted. It did not matter whether it was a darling of the left such as Ruth Bader Ginsburg, Elena Kagan or Sonia Sotomayor or a hero of the right such as Antonin Scalia, Samuel Alito or Clarence Thomas, all had been found wanting. Of course, had anyone investigated the members of Congress during the past decade the results would have been similar.

Both Congressional members and members of the Supreme Court seem to become surprisingly wealthy on their rather mundane salaries. Perhaps they are all just frugal. Or maybe it is just my envy of such “good luck” as Sonia Sotomayor had in earning three million dollars on her book when I, as a writer myself, am still selling out of my car’s trunk one book at a time instead of having my old court staff hawking them or me. Also, Peg and I would most likely have enjoyed a cruise on Clarence Thomas’ friend’s yacht.

However, the real issue is not are the justices being unethical, of course they sometimes are; most humans are at least sometimes. It is only sin if seen through the eyes of someone who disagrees with a justice’s judicial philosophy. Ginsburg was a saint and Ketanji Jackson is becoming one as far as liberals are concerned. Scalia was a contemporary John Marshall and Samuel Alito has an ermine robe in the eyes of conservatives, But Gentle Reader, they are just as you and I, human and opinionated; that is why they were nominated and confirmed by politicians.

 If you have read several of the more than 1,000 columns I have written and published since 1990, you may recall I have often called for Court reform. If Congress truly wishes to “do good”, they should amend our Constitution and devise a system of democratically electing federal judges who do not have life-tenure. Please, members of Congress, stop posturing from the right and left and legislate for the good of all of us. After all, we finally ended slavery and gave women the right to vote. Our 28th Amendment to the Constitution might help preserve our democracy instead of just shouting fire while we watch the Supreme Court burn.

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Filed Under: America, Authors, Gavel Gamut, Impeachment, Judicial, Law Tagged With: Congress, court morality, election of federal judges, James M. Redwine, Jim Redwine, judicial conduct, Justices, life tenure, Supreme Court, unethical conduct, William Shakespeare

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