Wednesday, July 18, 2007

A Fishy Gore story

Digby turns up a fishy Jake Tapper assertion that Al Gore ate some Chilean Sea Bass - a program manager for the Humane Society International calls it “arguably one of the world’s most threatened fish species” - at the rehearsal dinner for his daughter’s wedding:

Is Gore to be chastised for every fish that shows up on his plate?  It’s not as if he was eating a Bald Eagle. (Whoops—weren’t those just taken off the Endangered Species List!)

On the other hand, could this be seen as the environmentalist version of Sen. David Vitter’s public santimony/private enjoyment of love with a red-lit glow?

Says Digby, “Unless somebody at the wedding was schtupping the fish wearing a diaper, I’m not sure I see the analogy.”

Apparently the caterer may well have got the fish from that scourge of environmental liberal fascism, Whole Foods, and looky here:

Chilean sea bass have returned to our Seafood Departments after a seven year hiatus.  In 1999, it became clear that this popular species (also called Patagonian toothfish) was being overfished at an alarming rate, threatening its extinction.  In accordance with our strict sustainable seafood policy, Whole Foods Market stopped selling Chilean Sea Bass in August, 1999.

The Marine Stewardship Council (MSC), an independent non-profit body dedicated to sustainable fishing practices and ocean health, recently certified a fishery operating out of South Georgia Island for the sustainable harvesting of Chilean sea bass. This island is near the South Sandwich Islands located in the extreme southern Atlantic, where harsh prevailing weather conditions and active volcanism make it difficult for fishermen. While poaching remains a serious threat to Chilean sea bass in other areas, this remote fishery has proven itself to be a responsible one dedicated to sustainable practices as documented by the MSC.

Returning to Tapper’s question then, should Gore be chastised? Writes he, “you be the judge.”

Cook Political Report: GA-10 outcome a stunner!

A friend from home noticed I’d not posted on the apparent upset in the Georgia 10th District race. He sent analysis from the Cook Political Report:

Talk about a stunner. While most eyes inside the Beltway this week were glued to the latest rush of campaign finance reports, an insurgent yet under-funded candidate in Georgia who received next to no national help toppled a heavily favored establishment candidate whose runoff coronation became such conventional wisdom that he had begun to receive high-fives from national Republicans and “Welcome to Washington” PAC checks.

Very conservative GOP physician Paul Broun, who had earned his place in yesterday’s runoff by a hair (187 votes) in the June 19 th all-party special election, appears to have defeated conservative GOP state Sen. Jim Whitehead by two hairs (389 votes, or 0.8 percent) in the two-man second round. Barring a dramatic change of events in a recount, Broun will soon take the oath of office to succeed the late GOP Rep. Charlie Norwood and represent this heavily Republican Northeast Georgia district.

How’d he do it?

First, it’s impossible to ignore the fact that Broun was able to capitalize on a bitter regional divide in the race between the two largest regions in the district, Augusta and Athens. The Athens-based Broun, along with his hometown press, chastised Whitehead for skipping area debates and forums in the weeks leading up to the initial special election, and warned Whitehead might under-serve areas north of Augusta if elected. The attacks worked. Broun captured 89 percent of the vote in and around Athens, and peeled away a respectable 27 percent from Whitehead’s home base in and around Augusta to squeak by.

Second, Broun proved more culturally in step with the voters who participated in this “base-of-the-base” election. Throughout the summer, Broun attempted to distinguish himself from the heavily party-backed Whitehead by stating his intent to align his decisions in Congress with Bible teachings and not necessarily the GOP line. A last-minute flap over an email from Broun’s wife, in which recipients were asked to let other “real” Christians know of Whitehead’s hesitance to campaign in churches, generated an apology from Broun. But it most likely also created some skepticism towards Whitehead on the part of cultural conservatives who could not understand what was holding Whitehead back.

Third, though it is probably only possible to successfully run to Whitehead’s right in the Deep South, Broun managed to do so. Broun’s more strident rhetoric, especially on the issue of immigration, endeared him to the district’s conservatives, whose frustration with President Bush’s position on the issue is simply through the roof. In debates, Broun accused Whitehead of “posturing” on illegal immigration. As a political outsider, Broun was better able to run as an agent of pro-conservative change, and Whitehead’s status as an incumbent state legislator made him more susceptible to talk that he would go along with the status quo in Washington.

Take a look at the precinct results and it’s easy enough to figure out which county is home to Athens and which Augusta. Whitehead said that based on the “razor-thin margin” of victory he’d wait for the race to be certified before saying anything.

Democrats had hoped that their guy would have advance to the runoff, anticipating their shot at winning would be Whitehead’s self-destruction. Now that’s the kind of stunner I’d have liked to see.

Utah Supreme Court: consensual adolescent sex prosecution “absurd”

Eugene Volokh quotes from the opinion:

When she was thirteen years old, Z.C. engaged in consensual sex with a twelve-year-old boy and became pregnant. The state prosecutor chose to file delinquency petitions against both Z.C. and the boy for sexual abuse of a child under [State] Code section 76-5-404.1 [basically, in this context, any sexual touching of someone under 14 -EV], a crime that would constitute a second degree felony if committed by an adult....

Because we conclude that the legislature could not possibly have intended to punish both children under the child sex abuse statute for the same act of consensual heavy petting, we hold that applying the plain language of the statute in this case produces an absurd result.

Via The Liberty Papers:

In other words, no rational review of state laws against sex crimes against children should be held to apply to a case where both of the participants in the act are, in fact, children.

Approve of it, or disapprove of it, as you wish. But there’s no rational reason that something like this should be treated as a felony.

Barr, Genarlow, McDade & Nifong

The recently minted libertarian who earned national notoriety as one of the most forceful leaders of the effort to impeach President Bill Clinton for sex in the oval office, Bob Barr, today follows up his Fourth of July moral scold routine with the observation, in yet another AJC OpEd, that the U.S. attorney has no business in Georgia’s Genarlow Wilson case, apparently unconcerned about the irony of the man who played the Clinton scandal for every headline he could, calling here for “a more subdued setting.”

His beef is that the US Attorney in Atlanta issued a ruling that prosecutor David McDade’s distribution of the Genarlow Wilson sex tape was a violation of federal child pornography laws. Barr wants Genarlow disposed of quickly “following oral arguments scheduled for July 20, [so] we can all get back to other pursuits” and decries Genarlow’s supporters as involved in the “latest great civil rights crusade.” He then - without ever once addressing the merits - goes on to make the the states’ rights argument that will be familiar to anyone who recalls that other civil rights fight, the one against Jim Crow era segregation:

Insofar as both the U.S. and Georgia constitutions provide for trials in criminal cases to be open to the public, clearly it makes sense for the evidence in such cases to be similarly open to inspection by the public… The Georgia Open Records Act is even more explicit… While federal laws regarding public access to court records, including evidentiary records, are far less robust than Georgia’s, the general rule is the same - trial records and evidence developed therein, are to be available for public inspection.

Notwithstanding these laws and the fundamental public policy of openness they represent, the Department of Justice statement last week indicated that simply because certain categories of evidence (such as the Genarlow Wilson videotape) are subject to “federal law,” any state law provision that deals with such evidence differently, even if being followed by a duly elected state official carrying out the proper laws and procedures with which he or she is charged, must ignore the state laws to which their oath of office requires allegiance. The federal government’s statement concluded that federal law will “trump” state laws, presumably even if doing so would leave the state official liable for failing to abide by the state law.

There will be times when two competing sovereigns - the federal and state governments, for example - may view actions of a citizen differently; and more than one U.S. Supreme Court decision allows either or both to exercise prosecutorial discretion in deciding whether to move forward with a prosecution or to carry out some other aspect of the laws.

But to issue a blanket, “advisory” edict that federal law necessarily “trumps” the exercise of a state law being duly complied with by an elected official raises - to say the least - troubling questions of federalism and comity.

So just what’s this videotape fuss all about?

Back in February State Senate President Pro Tem Eric Johnson made an inflammatory speech on the Senate floor claiming that, contrary to a jury’s verdict, a rape had occurred in the Genarlow Wilson case. When CNN talked to jurors who disagreed, Johnson continued his attack on Neal Boortz’s radio show. And people started asking about the tape.

It is widely believed that District Attorney McDade was handing out copies to anyone he thought would be sympathetic. Griftdrift finds one problem with that in this Georgia Bar Association statement on the Special Responsibilities of a Prosecutor:

The prosecutor in a criminal case shall:

(g) except for statements that are necessary to inform the public of the nature and extent of the prosecutor’s action and that serve a legitimate law enforcement purpose, refrain from making extrajudicial comments that have a substantial likelihood of heightening public condemnation of the accused.

Radley Balko finds another in the Walsh Act:

Remember, the video was being distributed illegally, and was distributed and shown to media and politicians in order to spur public condemnation of Wilson based on a charge for which he was acquitted. What's more, after viewing his copy of the tape, Sen. Johnson used it to argue in the state senate against making the Georgia law repealing the poorly written prior statute retroactive, so as to apply to Wilson.

That's certainly much more than a "statement," and it goes above and beyond merely informing the public of why the prosecutor brought charges against Wilson in the first place.  The rape case is settled.  That charge can't be brought again. Instead, McDade's selectively airing the videotape, to try Wilson again in the court of public opinion.

The punchline to all of this is that under the new federal law the Walsh Act, defense attorneys in child pornography cases are given extremely limited access to the evidence (read: the pictures) against their clients, to the point where the defense bar says it hampers their ability to mount an adequate defense (thanks to De Novo for the tip).  All the evidence remains in the state's hands, making it difficult for defense experts to review it.  Here are the congressional findings explaining the need for the access provisions in the Wash Act:

“every instance of viewing images of child pornography represents a renewed violation of the privacy of the victims and a repetition of their abuse,” and therefore, “it is imperative to prohibit the reproduction of child pornography in criminal cases.”

This is not the only questionable behavior of the prosecutor in this case. Remember, too, the highly suspect visit to the mother of the victim with a tape recorder after she made sympathetic statements towards Genarlow to the AJC. More and more people are starting to wonder, is prosecutor David McDade another Mike Nifong? Did McDade act unethically or did he violate the law?

From Bob Barr’s opening statement in the impeachment hearings of President Bill Clinton:

What is the rule of law? The rule of law finds its highest and best embodiment in the absolute and unshakable right each one of us has to walk into a courtroom, and demand the righting of a wrong. It doesn’t matter what color your kin is, what God you pray to, how large your bank account is, or what office you hold. If you are an American citizen, no one should stand between you and your access to justice. [...]

We are not locked in a strange parallel universe in which up is down, is becomes was, and being alone is a physical impossibility. We are not living in an alien world, we are living in America. We are living in an America in which we know that felons are prosecuted and are not allowed to remain in office. We live in an America in which rights prevail, wrongs must be righted, and indeed, we have to stand up today, tomorrow, and forever, for the rule of law, the Constitution, and accountability…

Let’s investigate David McDade, too, for the rule of law, the Constitution, and accountability.