Fifth Amendment Archives - Ramblin' with Roger

The Kyle Rittenhouse verdict

compassion, kindness

I’m trying to contextualize the disappointing but unsurprising Kyle Rittenhouse verdict.

One part is Mark Evanier’s tweet. “And one day soon, someone of a different political view and/or race will do what Kyle Rittenhouse did and all the folks cheering today’s verdict will be screaming, ‘Rule of law!'”

There is a 2021 article in Slate that I found intriguing. “Black gun rights advocate Kenn Blanchard says Black Americans shouldn’t be scared of the Second Amendment.”

And of course, many African-Americans are afraid. Race DOES permeate the politics of gun control. Think of the death of Philando Castile, who announced to an officer at a traffic stop that he had a gun in his car. He ended up dead, and that continues to gut me.

I’m left to speculate what would have been the reaction by law enforcement to a young black male running through the streets of Kenosha, WI with an AR-15. Perhaps he would have ended up dead like Emantic “EJ” Fitzgerald Bradford Jr. He was a good black man with a gun trying to end an Alabama mall shooting.

But Kyle Rittenhouse, running through the chaotic streets with an automatic weapon, goes past law enforcement without incident. As a Boston Globe columnist noted: “You can be a vigilante when your mission is to serve the system.”

STFU

Much has been made of the judge’s rulings during the trial. For the most part, I concur. Yet there is one aspect that I have to agree with him. The fact that Rittenhouse had not made public comment before the trial should not have mattered. Moreover, when the prosecution suggested that this was an issue, and the judge reprimanded the state on Fifth Amendment grounds, it hurt the case. It was prosecutorial ineptness.

In this blog back in 2014, I wrote: “If I am ever in a situation that would involve the criminal justice system – whether as the victim and/or witness or defendant – I will not comment on what I might testify about until the trial is over. I won’t talk about it, and I certainly won’t blog about it.”

Very few things irritate me more while watching the news than having Lester Holt, or whomever, saying, “X is breaking their silence.” It’s as though talking about testimony to the press before the trial is what one is SUPPOSED to do. I do not buy it.

As a practical matter, shutting up is probably better. Alec Baldwin spoke after the shooting death of the cinematographer for the movie Rust. When he talked about how well-run the set operated, he may have made himself vulnerable to civil liability.

With God on his side

It fascinates me that the two folks on my Facebook feed who clearly supported the outcome put it in a Christian context. My old neighbor Greg says the verdict was “Absolutely beautiful totally innocent! 100% self-defense.” He bashed the “bleeding hearts”, and ends with “so good for Kyle excellent praise God.”

As someone who has been reading a lot of the Old Testament recently, there’s a lot of stories of the people of Israel preparing to invade other folks. Start with Joshua 1, for instance.

But this is not the Christian theology I believe in. I’m more of a Colossians 3:12 kind of guy. “As God’s chosen ones, holy and beloved, clothe yourselves with compassion, kindness, humility, meekness, and patience.” That would mean, in my mind, not becoming a Stand Your Ground provocateur.

Five things I know about Bill Cosby

After the Pennsylvania Supreme Court overturned the rape conviction of Bill Cosby, I heard his lawyers say a bunch of hooey. And, involuntarily, I yelled at the television.

There are five things I know about Cosby.

1) His comedy routines are still stuck in my head. As I wrote a little over a decade ago, he was an “iconic individual in my life.” I watched him in everything from I Spy to JELL-O pudding commercials.

2) He is a disappointingly awful excuse for a human being. Five dozen women have credibly accused Cosby of sexual assault. Using his considerable power and influence, he took advantage of his position to become a serial predator.

3) Nevertheless, the overturning of the conviction, on purely legal grounds, was correct, unfortunately. As Slate noted, “Don’t blame the Pennsylvania Supreme Court. Blame prosecutor-turned–Trump lawyer Bruce Castor.”

As the Washington Post noted: “The crux of the ruling is this: Castor had said he had a deal with Cosby saying Cosby wouldn’t be charged criminally for the sexual assault claimed by Andrea Constand. Castor said he did so to prevent Cosby from pleading the Fifth Amendment in ongoing civil litigation.”

“The thrust of that opinion is that, even though then-Montgomery County District Attorney Bruce Castor never reached a formal agreement with Cosby that granted him immunity from prosecution, a press release that Castor sent out in 2005 — combined with Cosby’s later, incriminating testimony in a civil lawsuit — had the same effect as a formal immunity deal.

A5

I resist the notion of suggesting, though, that Cosby was released “on a technicality.” Constitutional protection is not “a technicality.” The right not to incriminate oneself is not “a technicality.” If there had not been immunity in a civil case against prosecution in the criminal case, Cosby would never have elocuted his actions in the civil case.

4) Still, this is awful news. From the Guardian: “Victoria Valentino, who accused Cosby of assaulting her, told CNN that she was “absolutely shocked, stunned’ by the court’s decision. ‘It’s a gut-punch. What does it say about women’s words, a woman’s value, all the lives that he damaged? It’s outrageous. I’m infuriated,’ she said.

“Lawyer Gloria Allred, who represented many of Cosby’s accusers, said the decision must be ‘devastating’ for those women. ‘My heart especially goes out to those who bravely testified in both of his criminal cases,’ she said.”

“Like it or not, the decision to prosecute or not prosecute lies solely within the discretion of a district attorney and once he makes an agreement with a defendant, that agreement is a contract just like any other and when the defendant relies on that agreement, that is a binding contract,” Randy Zelin, who teaches at Cornell Law School, told USA TODAY.

He predicted the decision will have value as a precedent. “It means an oral agreement is sufficient to enforce a promise from a prosecutor,” Zelin said. “The good news is prosecutors are now on notice to be careful what they promise – and to put it in writing.”

Andrew Wyatt

5) Bill Cosby’s team should just shut up. Andrew Wyatt is the guy who complained about Eddie Murphy’s joke on Saturday Night Live in 2019. Murphy said: “If you would’ve told me 30 years ago that I would be this boring, stay-at-home house dad and Bill Cosby would be in jail — even I wouldn’t have taken that bet.” He then did an impression of Cosby saying, “Who’s America’s dad now?”

Upon Cosby’s release, Wyatt said. “This is a man who was railroaded, who was targeted because of a black man being America’s dad… On this hot day, this is a hot verdict for us that we will forever cherish because we got one of the greatest, or the greatest entertainer alive today, Mr. Bill Cosby, this great American citizen.” Wyatt claimed “vindication” in the rape case and a victory for black Americans. I’m not buying it. At all.

As Renée Graham in the Boston Globe noted: Black America deserves justice. Bill Cosby’s release from prison isn’t it. A powerful man escaping accountability doesn’t help Black people ensnared in an unjust legal system — or encourage sexual assault survivors to speak out.

Black America

“Cosby shows his disdain not only for sexual assault survivors but for the same Black America he spent years criticizing in speeches promoting respectability politics as he willfully ignored systemic racism as a blight on generations of Black people.”

Sidebar: the initial remarks by Cosby’s TV wife Phylicia Rashad is why I don’t tweet.

In summary, the opinion piece by Emma Gray of MSNBC speaks to me. “Processing [the] events requires us to hold many truths at once: I believe the Pennsylvania Supreme Court had legal reason to come to the conclusion that it did; I believe every person should be afforded due process; the criminal justice system is fallible and broken; I believe Bill Cosby is a sexual predator; I believe victims of sexual assault are routinely failed by the justice system and the culture as a whole.”

So no, I won’t be seeing him on a proposed comedy tour. Ever.

Constitutional allies

2013 marks the 100th anniversaries of 16th and 17th Amendments.

It’s Constitution Day!

Earlier in the year, I was inclined to agree with Jon Stewart of The Daily Show that most of the Constitution seems to be under attack, except that the Second Amendment right to bear arms seemed to be sacrosanct. For instance, the Supreme Court has chipped away at the Fifth Amendment right to remain silent.

Worse, it felt that only a relative handful of people were concerned. That has visibly changed, and the opposition to governmental overreach is bipartisan.

Item from Newsmax:

“The American Civil Liberties Union is joining tea party activists in opposing the use of armed drones and other counterterrorism operations to kill suspected terrorists, even American citizens.

“A recently surfaced Justice Department memo revealed that drones can strike against a wider range of threats, with less evidence, than previously believed.

“Both the ACLU and tea party groups cite the Fifth Amendment, which says that Americans are guaranteed due process of law under the Constitution and that the classified program circumvents that right.

Item from Newsmax:

“Stopwatching.us has gathered more than a quarter of a million signatures, including the libertarian Competitive Enterprise Institute and the conservative FreedomWorks and Restore America’s Voice.
Most of the selected signatories on the page are from more liberal groups, such as the Daily Kos, MoveOn.org, Green Peace, and Occupy Wall Street NYC.”

Now President Obama has decided to get Congress’s input in our Syria policy, consistent with the legislative body’s Constitutional war making authority. The Tonight Show’s Jay Leno recently quipped: “And if that works there’s talk of bringing back the REST of the Constitution!”

The Constitution is not “left” or “right”, people have started to have figured out.

In a book review, Jaquandor pondered: “Do I believe in the Constitution? I suppose so, in that I believe that we have a government that is structured according to the provisions contained within the Constitution’s pages. And that’s about all that I believe about it. I don’t believe that there is anything especially sacred about the Constitution, and I don’t believe that the Constitution represents some kind of moment when we rose to greatness. In truth, the Constitution is a muddled mess of a document, and the government it creates isn’t so much a brilliantly constructed Machine of Democracy as a hodge-podge, ramshackle mess of compromises with difficulties exacerbated by some really poor writing.”

2013 marks the 100th anniversaries of the 16th and 17th Amendments. The 16th, which allowed for a federal income tax, is almost universally despised, not just because it levies taxes, but because the tax code has become so cumbersome that one needs accountants and lawyers to fully exploit the loopholes that other accountants and lawyers have inserted into it.

The 17th Amendment calls for the direct election of US Senators, which previously had been selected by state legislatures. Seems like a no-brainer, but there is a cadre that continues to call for its repeal. Here’s why.