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Monthly Archives: September 2011

USC Article I

 

As I explained in the previous blog entry, there are three branches of government, the legislative, executive and judicial.

 

Section 3

Section three establishes the Senate. Again; I’ll explain each paragraph of it in simple, easy to understand terms.

 

The Senate of theUnited Statesshall be composed of two Senators from each State, chosen by the Legislature thereof, for six Years; and each Senator shall have one Vote.

This is actually self-explanatory. Yes, it said “state-legislatures.” Senators, being the states’ representatives of their interests, as opposed to the House members, who answered to the people, they were elected by the states until the Seventeenth Amendment of 1913.

 

Immediately after they shall be assembled in Consequence of the first Election, they shall be divided as equally as may be into three Classes. The Seats of the Senators of the first Class shall be vacated at the Expiration of the second Year, of the second Class at the Expiration of the fourth Year, and of the third Class at the Expiration of the sixth Year, so that one third may be chosen every second Year; and if Vacancies happen by Resignation, or otherwise, during the Recess of the Legislature of any State, the Executive thereof may make temporary Appointments until the next Meeting of the Legislature, which shall then fill such Vacancies.

Everyone was starting at the same time during the first Senate session, but it was felt that the states deserved the same opportunity given to the people…calling their guys to account every two years. The solution was to divide the first Senate into three groups—we’ll call them A, B and C—whose terms would be adjusted to coincide with House elections. Group A served a two year term. Group B served four years. Group C, the lucky ones, served the full six-year term. The result is that every two years, the entire House and one-third of the Senate is vulnerable to replacement.

Governors had the power to make “recess appointments” to fill Senate vacancies, just as they would vacancies in the states’ governments, until 1913.

 

No Person shall be a Senator who shall not have attained to the Age of thirty Years, and been nine Years a Citizen of theUnited States, and who shall not, when elected, be an Inhabitant of that State for which he shall be chosen.

This is simple; to be a Senator, you must be thirty, a U.S. citizen for at least nine years and live in the state you wish to represent…and you can’t be planning to move.

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The Vice President of theUnited Statesshall be President of the Senate, but shall have no Vote, unless they be equally divided.

The Vice-President is the Senatorial counterpart to the House Speaker. This is why, during a Joint Session, you will see Joe Biden and John Boehner standing—or sitting—behind Barack Obama. Unlike the Speaker, though, the President of the Senate is only allowed to vote, if a tie is to be broken

 

The Senate shall chuse their other Officers, and also a President pro tempore, in the absence of the Vice President, or when he shall exercise the Office of President of theUnited States.

Like the House, the Senate chooses it’s own people. The main difference is the necessity of a Pro-Tem, due to the possibility the Vice-President may be called upon to serve as Acting-President. This happened often in the pre-telegraph age of equine travel, but rarely occurs now. Ronald Reagan had several medical and surgical procedures, and during those times, pursuant to both Article One, Section Three and the Twenty-Fifth Amendment of 1967, George H.W. Bush served as Acting President.

 

The Senate shall have the sole Power to try all Impeachments. When sitting for that Purpose, they shall be on Oath or Affirmation. When the President of theUnited Statesis tried, the Chief Justice shall preside: And no Person shall be convicted without the Concurrence of two thirds of the Members present.

I mentioned that impeachment in the House is equivalent to a preliminary hearing or grand-jury. Trial in the Senate is just that. Conviction in the Senate results in immediate removal from office and disqualification from holding any Federal public office.

 

Judgment in Cases of Impeachment shall not extend further than to removal from Office, and disqualification to hold and enjoy any Office of honor, Trust or Profit under theUnited States: but the Party convicted shall nevertheless be liable and subject to Indictment, Trial, Judgment and Punishment, according to Law.

Unlike trial in other venues, however, trial in the Senate does not attach “double-jeopardy” to the case. An expelled office-holder is still liable for any and all criminal charges. This is why Gerald Ford so quickly pardoned Richard Nixon. Had he not done so, it is certain our former President would have ended up in U.S. District Court.

 

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USC Article I

You may have heard somewhere that there are three branches of government. If not, there are, and they are the legislative, executive and judicial branches.

 

This is where Article One of the Constitution enters the picture

Article I:

Section 1 states:

All legislative Powers herein granted shall be vested in a Congress of theUnited States, which shall consist of a Senate and House of Representatives.

 

Article One sets forth the structure, duties, powers and membership requirements of the legislative branch.

 

It is therefore the longest of the Constitution’s seven Articles, at a whopping ten sections.

For that reason, covering it will require several blog entries.

 

Section two establishes the House of Representatives. I’ll explain each paragraph of it in simple, easy to understand terms. Because the Constitution is the supreme law of the United States, I recommend that you read it for yourself. 

Section 2

The House of Representatives shall be composed of Members chosen every second Year by the People of the several States, and the Electors in each State shall have the Qualifications requisite for Electors of the most numerous Branch of the State Legislature.

 

This means that Representatives from each state—referred to as the “several states”—are elected by the residents of those states to two-year terms. Buried in the polite “Enlightenment-era” language is the unmistakable message that you need not plan on voting, if you wouldn’t be eligible to serve in your state’s legislature or vote for its members. Most states required voters to be free, male, at least twenty-one years of age and property-owners. If you failed any of those qualifications, you weren’t voting.

No Person shall be a Representative who shall not have attained to the Age of twenty five Years, and been seven Years a Citizen of theUnited States, and who shall not, when elected, be an Inhabitant of that State in which he shall be chosen.

 

This is simple; to be a Representative, you must be twenty-five, a U.S. citizen for at least seven years and live in the state you wish to represent…and you can’t be planning to move. Similar requirements apply to Senatorial candidates, and this is why Hillary Clinton had to move to New York, in order to run for her Senate seat. You must establish and maintain residency.

Representatives and direct Taxes shall be apportioned among the several States which may be included within thisUnion, according to their respective Numbers, which shall be determined by adding to the whole Number of free Persons, including those bound to Service for a Term of Years, and excluding Indians not taxed, three fifths of all other Persons. The actual Enumeration shall be made within three Years after the first Meeting of the Congress of theUnited States, and within every subsequent Term of ten Years, in such Manner as they shall by Law direct. The Number of Representatives shall not exceed one for every thirty Thousand, but each State shall have at Least one Representative; and until such enumeration shall be made, the State of New Hampshire shall be entitled to chuse three, Massachusetts eight, Rhode Island and Providence Plantations one, Connecticut five, New York six, New Jersey four, Pensylvania eight, Delaware one, Maryland six, Virginia ten, North Carolina five, South Carolina five, and Georgia three.

 

That’s right…prior to the Sixteenth Amendment of 1913, states paid the taxes, because the Federal government had no power to levy an income-tax. States levied their income-taxes, and then paid taxes to the Federal government.

This is also where the notorious “three-fifths” compromise appears, where native-americans weren’t counted and slaves were only counted as three-fifths of a person, for the purposes of establishing representation in Congress.

This is also where a Census is mandated every ten years. Contrary to what you may have heard form those on both ends of the political spectrum, the census isn’t about hunting illegal immigrants or committing fraud. It’s about ensuring you are adequately represented in Congress. If you evade the census, you not risk being fined, but deny yourself a voice in government.

When vacancies happen in the Representation from any State, the Executive Authority thereof shall issue Writs of Election to fill such Vacancies.

 

Simply put; if someone dies or resigns after being caught on an open-mic, talking about spanking his lobbyist mistress, the governor has to call an election to fill the vacancy.

The House of Representatives shall chuse (it was spelled that way) their Speaker and other Officers; and shall have the sole Power of Impeachment.

 

This provides for the House electing its Speaker, Sergeant-At-Arms, Majority and Minority Leaders, and so on.

It also establishes that any impeachment, whether of a Federal Judge or the President, takes place in the House.

 

A word on impeachment…

Many people think that when a politician is impeached, they are immediately removed from office.

An impeachment is the equivalent of a preliminary hearing or a grand-jury. It’s simply a device to ascertain whether the charges against the defendant merit the time and expense of a trial, or are like the anecdotal guy who tattooed his will on a private part of his anatomy…unable to stand up in court.

For reasons upon which I won’t elaborate, I’m unable to appear on camera, but that won’t stop me from explaining the foundations of the United States of America in my blog.

(Yes, I will post on non-government, non-criminal justice stuff. It just won’t be today, so read and learn…or at least–I hope–be entertained.)

United States Constitution

Preamble:

We the People of the United States, in Order to form a more perfect Union, establish Justice, insure domestic Tranquility, provide for the common defence, promote the general Welfare, and secure the Blessings of Liberty to ourselves and our Posterity, do ordain and establish this Constitution for the United States of America.

If you’re my age or older, you most likely had to quote this from memory as part of your government class…the one we were all required to take.

If you graduated within the past ten years, you most likely did not take a government class, so let me break it down for you. The explanation may be redundant at times, but it’s hard to match the brevity of the preamble.

We the People of the United States…

That’s not just the framers of the Constitution, but the citizens of the United States.

in Order to form a more perfect Union…

This is a statement of intent, declaring the Union established by the Constitution more perfect than the “perpetual union” established by the Articles of Confederation and Perpetual Union.

…establish Justice…

Although the judicial branch is mapped out and established in Article III, it is at this point that it—and the standardized system of justice embodied therein—is called into being.

…insure domestic Tranquility…

This is two-fold. It is similar to the “peace” cited in the subsequent Canadian constitution’s promise of “peace, order and good government.” It is also another reference to the union and its system of justice. Disputes within a nation are generally settled peacefully, whereas disputes between neighboring nations often erupt into war. 

…provide for the common defence…

This renews the U.S. government’s commitment to maintaining a U.S. military, a much stronger military than that administered and funded by the Articles of Confederation

…promote the general Welfare…

This is a promise from the government to the people that it will be there for us, maintaining a cohesive and successful economy, system of laws, strong military and national identity. It’s just another way of repeating the abovementioned promises and statements.

…and secure the Blessings of Liberty…

This is a different kind of promise…not to be there, wherever you may be, anytime. The blessings of liberty are freedom, privacy, the right to disagree with the government and so on…what we now regard as human rights. In fact, this preamble was intended to serve the functions later fulfilled by the Bill of Rights.

…to ourselves and our Posterity…

Basically, another way to say “forever and ever, Amen.”

…do ordain and establish this Constitution…

This is part of securing the blessings of liberty for all generations of Americans. The Framers chose to present a written Constitution to the states for ratification, rather than notes on an unwritten constitution, like that of Great Britain.

If something is unwritten, it can be changed. If something is written, with a copy presented to each state, it’s essentially set in stone.

…for the United States of America.

We all know what that is…right?

Duane Edward Buck should be dead by now. He was sentenced to death for the July 1995 shooting murders of his ex-girlfriend and her male friend, but has managed–at least for the moment–to beat the executioner through a technicality.

Mr. Buck’s guilt has never been in doubt. He shot his own sister moments after committing the double-murder for which he was condemned, but she managed to survive and has worked to save his life.

Believe it or not, Buck’s ethnicity is at the heart of his appeal regarding the death sentence he earned.

Before I go any farther, please allow me to explain how the modern death penalty arose inTexasand how it works.  (Also, please don’t stop reading for another reason; I have a proposal at the end of this blog entry.)

Okay, back to the show…

In 1967, there were many, many questions regarding the execution of criminals:

Was race a factor?

Was the decision to pursue a death sentence tantamount to a lethal game of ‘cow-patty bingo’?

Had we evolved to a point where killing people as punishment for crimes, no matter how heinous, was no longer acceptable?

If we did kill them, how should that happen?

Firing squads? Hanging? Decapitation? Cyanide gas? Electrocution?

A considerable number of cases related to death sentences were headed to the U.S. Supreme Court, so a gentleman’s agreement was reached with the states’ attorneys general and their federal counterpart that no executions would take place after mid-1967…at least until the high court had time to consider every angle, every question relating to the taking of a human life.

Most of the cases were consolidated into one, which was known by the name of the lead parties, Furman v. Georgia, that era’s legal equivalent of Armageddon, was argued on 17 January, 1971.

Rulings in most cases argued on that date would have been issued in June, October at the latest.

This was legal Armageddon, so the ruling was not issued until seventeen months later, on 29 June, 1972.

The ruling didn’t merely divide the nine-member court, but shattered it. Two Justices ruled that the death penalty was unconstitutional under any circumstances. The other Justices agreed that the death sentences still passed constitutional muster, but differed on exactly under what circumstances they could be executed upon criminals.

The main ruling–that which at least five Justices could agree upon–found that the death penalty as then applied was as capricious as a lightning strike, disproportionately fell upon minorities (those of non-white ethnicity) and were sometimes the result of limited choices presented to trial jurors.

Al states, the U.S. Federal criminal justice system and the U.S. military were instructed to amend their capital statutes so that jurors had more choices, the range of crimes carrying a possible death sentence was reduced and sentencing jurors had the chance to hear both evidence regarding a defendant’s future danger and mitigating circumstances regarding the crime or the defendant’s background.

Methods of execution were left for future rulings.

Because the U.S. Supreme Court does not hear moot cases, reinstating the death penalty in theUnited Statesrequired amending the laws, sentencing people to death and having those amended laws reviewed upon appeal.

That appeal was Gregg v.Georgia, the ruling for which was issued on 2 July, 1976, and this is an explanation of theTexasstatute which was upheld in that ruling:

Capital murder in Texas is defined as involving one of the five situations:

murder of a peace officer or fireman;

murder committed in the course of committing kidnapping, burglary, robbery, forcible rape, or arson;

murder committed for remuneration (contract killing);

murder committed while escaping or attempting to escape from a penal institution; and

murder committed by a prison inmate when the victim is a prison employee.

Upon conviction of the offence of capital murder and after presentations in the sentencing phase of the trial, jurors must consider the following:

1–Does there exist a probability the defendant would commit criminal acts of violence which would constitute a “continuing threat to society”? (“Society” in this instance includes both inside and outside of prison; thus, a defendant who would constitute a threat to people inside of prison, such as correctional officers or other inmates, is eligible for the death penalty.)

2– Taking into consideration the circumstances of the offense, the defendant’s character and background, and the personal moral culpability of the defendant, are there sufficient mitigating circumstances to warrant a sentence of life imprisonment rather than a death sentence?

3–(for conspiracy or ‘law of parties’ cases) Did the defendant actually cause the death of the deceased, intend to kill the deceased, or ‘anticipated’ that a human life would be taken?

If question one (and three, if applicable) is answered ‘yes’ and two is answered ‘no’, then a death sentence is automatically recommended to the judge, otherwise a life sentence is imposed.

Now, getting back to Mr. Buck, his appeal stems from the testimony of psychologist Walter Quijano, who stated under cross-examination that Buck’s ethnicity posed a risk factor for future violence.

Quijano offered similar testimony in six sentencing hearings. The defendants in the other five received new sentencing hearings and all were resentenced to death.

Buck’s fusillade against three people, coupled with the deaths of two, were more than sufficient to warrant his death sentence.

Simply put; Mr. Buck wasn’t sentenced to death for his skin, but his crimes…two murders and a near-lethal assault on his sister.

Still, I have a proposal to improve the criminal-justice system by completely eliminating any chance of racial prejudice.

Fair Capital Sentencing Act of 2012

Effective 1 January, 2012:

Upon conviction of a capital crime, the defendant shall be remanded into custody pending the selection of a new jury for a separate sentencing trial.

The defendant shall have the right to observe the jury selection and sentencing trial from a separate room, via one-way closed-circuit television and communicate with his or her counsel via a private audio communications system such as Interrupted Feedback (sometimes called interruptible foldback) or a Talkback.

The defendant may give testimony from a separate room, via an audio channel which has been digitally-altered to remove any ethnic identifiers, with a raw-feed provided to counsel for both prosecution and defense, and the judge.

The defendant’s family, friends and any other character witnesses may also testify in a similar manner.

Under no circumstances shall the defendant personally appear in court during the sentencing trial. Violation of this provision shall result in a mandatory mistrial.

The defendant’s family may only attend the sentencing trial while seated behind opaque dividers sufficient to prevent jury members from glimpsing them. If such accommodations are not available, the defendant’s family may monitor the trial with him or her. Violation of this provision shall result in a mandatory mistrial.

Upon being informed of a verdict, the judge shall have the defendant brought into the courtroom and provide him or her a chance to address the bench before announcing the sentence.

Any death sentence shall be immediately submitted to the Texas Court of Criminal Appeals for review.

Any death sentence imposed on or after 1 January, 2012 shall carried out by the administration of nitrogen gas through a mask for a duration of not less than ten minutes.

 

At about 10:30 pm (2230 CDT for my European friends), I arrived for a fourteen-hour shift at KTRK (Channel 13, for those in Houston), talked with the six-am producer about the stories which he had inserted in the show’s rundown and set to work.

 

The fourth–or possibly fifth–story was about a book-signing by Sir Ahmed Salman Rushdie, who had been in town to promote his novel, Fury.

 

I remember very clearly that as I watched the BetaCam tape from the event, searching for a suitable sound-bite from Mr. Rushdie, I was glad thatHouston’s Muslim community had treated him well.

 

You see; back then, Muslims were considered our friends. My father had spent the two years after my high-school graduation in the Kingdomof Saudi Arabia–he actually walked out of my childhood home without me, three months before graduation day, but that’s another story–and I’d had the opportunity to see that Muslims were ordinary people.
They have the same hopes, dreams and fears as we do, but their religion plays a much greater role in their lives, which is where the trouble starts. By trouble, I mean thousands of ignorant and impressionable people suctioned into radical organisations by chicken-hawks hiding behind clerical titles.

 

Anyhow, I did that story and about twenty-five more without any inkling of what would later happen, stacked the tapes and worked them.
(before non-linear editing directly to digital servers and such, you had a tape, possibly two for each story. These tapes had to be gathered from the editors and passed to the tape-playback person. Invariably, some of the tapes  weren’t ready until seconds before they played and, therefore they had to be run from an editing booth to the playback person. I had a runner’s legs, just like the others who did this sort of thing.)

 

So, after everything settled down at about 6:45 (0645), I sat down at the desk, pulled up the AP ticker and began “stacking” the 8:25 newsbreak which I was due to produce–everyone starts somewhere.
The stories were the usual minutiae, which meant I wouldn’t be grabbing any breaking news–I foolishly thought–so I chose the three most interesting stories of the morning for the newsbreak.

Shortly after I moved back from the tape-desk to my own, I noticed a blip about the Boston ARTCC (AirRouteTrafficControlCenter) losing contact with a plane, which would later be identified as AA Flight 11, the plane which impacted the NorthTower. I pointed this out to my friend and six-am producer, Corin and the five-am producer, Courtney.

Courtney thought it was mildly interesting, but her newsbreak went on-air at 7:25 and Corin’s break at 7:56 was too short, so if anything came of it, it would be my story. I also passed it on to Holly, the midday producer.

 

Now, those who haven’t been in a newsroom might not know that every desk has a television. We not only watched our own show, but some of us were assigned to watch the competition and carefully analyse their newscasts. In fact, while doing this, I once saw a slip at the twentieth floor-level while climbing a building and fall to the pavement. (That station was the only one to not pull away.)

 

I mention the TVs, because at about 7:47, just as Corin was putting the finishing touches on his cut-in, the other associate producer, Andrea screamed “Oh, my God! That plane just hit that building!”

We looked at our TVs as the plane’s impact into theNorthTowerreplayed again. (She had seen a replay, as–to my knowledge– the impact wasn’t carried live.)

 

ABC was in special report, so that meant no newsbreak. That was very good, because we were all much too busy calling the news-director, executive-producers, general manager and everyone but the janitor.

I called my mother, simply said “turn on CNN” and hung up.

 

Shortly after eight-am, while talking to one of the EPs, an Evangelical lady named Robin, the monitor above her head showed a live-feed of another plane hitting the South Tower and before I even thought, I yelled “Goddamn! Motherfucker! Was that a MiG?”

Robin snapped her head around to look at the monitor and promptly forgot the blasphemy. I just kept looking at the replay, trying to make sense of what I had seen. I kept trying to place the aircraft. A Boeing 767, the type used for the Air force One fleet, never once entered my mind.

As stupid as it sounds in 2011, almost no one in 2001–myself included–ever thought about using a jetliner as a missile.

 

Someone recently wrote a newspaper article claiming that September 11th was more important than thePearl Harborattack. That’s a steaming pile of bullshit, but the September 11th attacks did change the way we think and approach things.

 

During the 1990s, I flew 30,000 km to 40,000 km and enjoyed every one of them. I haven’t flown since 1999 and you couldn’t pay me enough to board a plane.

 

Too much crap.

 

Too much idiocy.

 

Too little freedom.

 

I’ve hated the Department of Homeland Security since the beginning. It sounds too much like the “Fatherland.”

 

I’ve supported the Afghan war from the beginning and condemned theIraqwar from day one.

 

On September 12th, we had the world’s sympathy and backing, but the Bush Administration managed to squander that, calling to mind my Grandfather’s saying about a person being able to fuck up a wet dream.

 

In the past ten years, DHS has  gained the power to:

Demand information on which books you’re purchased.

Demand libraries disclose which books you’ve checked-out.

Enter your house without your knowledge, investigate you without anyone’s knowledge and prevent you and your attorney–under penalty of Federal imprisonment–from disclosing said investigation to each other, should one of you accidentally stumble upon it.

 

Torture has also been legitimised and habeas corpus has been suspended. That last one is rather important.

Although prosecutors still honor habeas for more than ninety-nine percent of suspects, it is now possible for the U.S. government to declare anyone, citizen or not, an enemy combatant who can be arrested, detained indefinitely and denied the benefit of counsel.

 

You can be thrown into a deep hole and forgotten. It’s like the old saying about “killing so-and-so and telling God that he/she died.”

 

The terrorists instilled enough terror that we forsook many of our freedoms, therefore they won.

 

Where was I on 11 September, 2001?

 

In the early hours, I was enjoying the last night of a dying world.  A world where elderly women aren’t forced to remove their wet diapers, children aren’t fondled in the name of security and la crise du jour doesn’t necessitate removing yet another article of clothing.

 

I’m just waiting for the “tampon-bomber”, “breast bomber” or “suppository bomber.”  That’s one security line, which I’ll pay just about anything to skip.

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