Update no.496

Update from the Heartland

No.496

13.6.11 – 19.6.11

Blog version: http://heartlandupdate.blogspot.com/

To all,
The follow-up news items:
-- On 7.June.2011, U.S. Senior District Judge Dickinson Richards Debevoise of New Jersey issued his ruling in the case of Soobzokov v. Holder [USDC NJ 2:10-cv-06260-DRD (2011)] – Aslan Soobzokov’s petition for a Writ of Mandamus [474] – a court order seeking:
“(1) to compel [the U.S. G]overnment [USG] to disclose the results of their investigation into his father’s murder,
“(2) the creation of a neutral body to review [the USG] investigation, and
“(3) to transfer the investigation files to a different jurisdiction for investigation and prosecution of certain suspects.”
On 15.August.1985, a bomb at his front door critically injured Tscherim Soobzokov; he died of his injuries on 6.September.1985. After 20 years of exhausting efforts to seek justice for his father and family, Aslan Soobzokov filed a Complaint and Order to Show Cause on 21.November.2005, to compel the FBI and DOJ to reopen the investigation into his father’s assassination [Soobzokov v. Gonzales, no. 05-5486]. Aslan has been diligently pursuing judicial intervention in his laudable and admirable effort to find justice for his family. Judge Debevoise noted, “[I]t is well-settled that ‘the executive branch has exclusive authority and absolute discretion to decide whether to prosecute a case.’ United States v. Nixon [418 U.S. 683 (1974)]. More specifically, ‘[T]he Attorney general and United States Attorneys retain broad discretion to enforce the Nation’s criminal law.’ United States v. Armstrong [517 U.S. 456 (1996)].” Further, the judge observed, “To be sure, prosecutorial discretion is not absolute. For example, selective prosecution ‘based on an unjustifiable standard such as race, religion, or other arbitrary classification’ is a violation of the Equal Protection Clause of the Fourteenth Amendment. Armstrong.” Is political bias against the victim an “unjustifiable standard”? Judge Debevoise concluded, “[T]he Court does not have jurisdiction to provide the mandamus relief sought,” as he denied Aslan’s petition.
I wrote to Aslan,
When I read Judge Debevoise’s opinion, I am struck by the sense of weight and the power of the State. He cites the prevailing common law, but he does not mention justice. Judge Debevoise stands behind the separation of powers as he should, but I find the court’s circular argument disturbing. He says you cannot establish malfeasance because you are denied access to essential information, i.e., your petition for discovery was denied by the “ongoing” status. The USG appears to want it both ways – to claim the case is open to deny you access and also to claim it is closed (no further investigation). Although those of us who seek justice for your father and your family do not find comfort or resolution in the court’s opinion, I would feel better if they declared their resistance to seeking extradition a national security issue. I am certain you find little satisfaction in the court’s ruling. The USG risks alienation via unilateral bias, such that a citizen feels the government is against him at a personal level, thus favoring others for unspecified reasons – hardly “Equal Justice for All.”
I like your recommendation for a court ordered independent investigation, which presumably could and should overcome any political bias. We clearly do not know why the USG is not pursuing the murderers and terrorists, who assassinated your father and injured your family. There is no question or debate that your father’s death was murder – a felonious crime of the most serious kind.
You have been denied “equal protection of the laws” by the USG, for whatever reason they may claim, and despite what the court chooses to ignore.
An appeal will cost money and time. I do not see any flaws or errors in Judge Debevoise’s opinion – only an unsupportive emphasis and interpretation of the law. Yet, it seems to me, an appeal that attempts to paint the common law in the light of the 14th Amendment’s equal protection provision might find resonance. However, to be frank, such an appeal is a crap-shoot, dependent upon the perspectives of the judges assigned the appeal. They could also simply deny an appeal.
Have you sought political support and pressure from your Federal senators and representative? If so, what did they say?
Have you decided what your next move is?
You have supporters, Aslan. You and your family deserve justice. Please let me know if there is anything we can do to assist you.
Peace be with you,
Cap
Postscript: Given the judicial biases of the Supremes illuminated in Plata (below), an appeal that would make it all the way to the U.S. Supreme Court must acknowledge the intervening law, cited by Judge Debevoise, while emphasizing the “equal protection” dimensions beyond the case law. I believe each and every one of us in similar circumstances would seek the same justice and closure for our families. One or more assassins murdered Tscherim Soobzokov. He was denied the justice due him. We should all be offended by what the Soobzokov family has had to endure for a quarter century. Let justice prevail!
-- A friend and long-time contributor sent along a local news clip that should be of interest to all. It seems our demonic, possessed neighbors from the Westboro Baptist Church [190 & sub] of Topeka, Kansas, sought to conduct their usual protest at the funeral of Specialist Robert P. Hartwick, USA, in Logan, Ohio (a small community in the hill country of Eastern Ohio). As it was reported, the Phelps protesters never showed up at the funeral service, as they found themselves without transportation. Apparently, a concerned citizen (or two) decided to take matters into their own hands – all four tires on their van were slashed. I certainly understand the action, but we cannot condone damage to property (or injury to citizens) because we disapprove of the words of others. I hope this does not escalate elsewhere.

I have tried to avoid the whole sordid mess that exploded around Representative Anthony David Weiner of New York. I cannot resist any longer. I shall make no attempt to condemn or rationalize his conduct. What I would like each of us to ask ourselves is why? Not why did he do what he did, but rather why do we find such joyous or gleeful satisfaction in dismembering public officials or celebrities with our sanctimonious faux-morality? These were words, folks . . . well, and a few images . . . sent to willing, consenting adults. He drew no blood. He did not impregnate anyone. He did not violate any law (morality law or otherwise). He did not force anyone to do anything. In short, he harmed no one . . . the primary and principle exception of his new wife, who in her own right is a prominent public official. There is no doubt he seriously embarrassed his wife and himself. I suspect husband and wife have plenty to discuss and work out. Our most prominent public transgressor in my lifetime violated ethical and legal standards, and yet he survived his impeachment trial and reclaimed his status as a respected elder statesman. Reportedly, Anthony’s mistake was a moment of carelessness regarding the privacy settings of his Facebook account. For this, we crucify the man. And, we wonder with quasi-ignorance why good citizens do not seek public service.
BTW (in Web-parlance), Anthony’s family name is pronounced vī-nur in German, so let’s ditch the jokes.

Most judicial pronouncements appear to have no direct effect on us – after all, we are not drug dealers, murderers, or criminals of any kind. Even cases that might indirectly impact some of us seem to be quite distant. So, who cares? I see these rulings not as any direct consequence to me, but rather little glimpses into what might one day affect each and every one of us. A month ago, the Supremes issued their ruling in Brown v. Plata [563 U.S. ___ (2011); no. 09-1233] – an affirmation of a lower court order to the State of California to dramatically reduce its prison population. The succinct bottom line: the California state prison system at trial held 156,000 inmates with a capacity for 80,000; for 20 years, the state and courts danced around the serious consequences of prison overcrowding; the courts ordered to reduce its prison population to 137.5% of design capacity (which is still too high in my opinion). The required population reduction could be as high as 46,000 persons. None of us are in prison, so who cares. This case gives us an unusually crisp illumination and contrast into the judicial thinking of the Supremes. Associate Justice Kennedy wrote for the majority, which included Justices Ginsburg, Breyer, Sotomayor, and Kagan. He noted, “Prisoners retain the essence of human dignity inherent in all persons. Respect for that dignity animates the Eighth Amendment prohibition against cruel and unusual punishment. ‘The basic concept underlying the Eighth Amendment is nothing less than the dignity of man.’ Atkins v. Virginia, [536 U.S. 304 (2002)].” As much as I have railed against the judicial reasoning of Antonin the Impaler, there should be no doubt I truly admire his writing and cogent arguments; this case is no different. Scalia focused his dissent (in which Thomas joined) on the clear reality that the Constitution offers no authority to the Court for the action taken in Plata. He said, “Structural injunctions depart from that historical practice, turning judges into long-term administrators of complex social institutions,” as the Court’s order places judges as supervisors of Executive action. Scalia also opined, “[T]he Court disregards stringently drawn provisions of the governing statute, and traditional constitutional limitations upon the power of a federal judge, in order to uphold the absurd.” In such judicial pronouncements, we are left with the impression that Antonin the Impaler could care less about the rights of an individual citizen; it is the power of the State that he seeks to preserve – the very base distillate of Federalism. Perhaps Antonin believes Article III has far more (verging on infinite) weight than the 8th Amendment. Associate Justice Alito stated the essence of the dissent, “The Constitution does not give federal judges the authority to run state penal systems.” The words of the Court’s decision were not my point.
The issues raised by Plata offer us the opportunity to examine the broader questions. The State always retains the option of building more facilities and hiring more personnel to ameliorate the conditions of the constitutional violation. Like any resource, utilization must be regulated by a variable demand, which in this situation seems to demand a sliding filtration process to ensure available capacity is efficiently used without exceeding the constraints on the resource – a form of capacity triage, if you will; such that once a prison reaches capacity, a serious violent convict entering prison must displace a lesser, non-injurious prisoner – released. I am a confessed unsympathetic citizen when it comes to punishment for violent and/or habitual criminals that cause injury to other citizens or property. I want incarceration to be stark, austere sustenance – nutritious food, pure water, security and medical services. If we were discussing a flood rather than medical facilities, would or should the response be any different? In my flood analogy, must we wait for a prisoner to drown before we recognize the flood threat, and even at that, since the deceased prisoner is the only one to suffer injury, is he the only one with standing for a claim? This is a magnificent example of contrast between the so-called fundamentalist or strict constructionists and those they accuse of being judicial activists. The Constitution offers not one literal word of authority for the Court to dictate to a State that it must reduce its prison population. Thus, we have the dissent of Justices Scalia, (Thomas), Alito and (Roberts) that give us a forecast of things to come; they see themselves as the protectors of the State rather than the defender of the right of citizens, even incarcerated, transgressor citizens.

Comments and contributions from Update no.495:
Comment to the Blog:
“We are in broad agreement this week. I still doubt whether legalization without any regulation will ever occur, and I agree that it would create very serious problems. I am still using Prohibition, Repeal, and their aftermath as my basic guide. I expect that basic restraints to protect non-users would be part of any legalization or, at worst, would follow shortly.
“I share your horror at the King decision. The removal of the foundation of the United States goes far beyond legal issues with drug users. “Exigent circumstances” can excuse even the most brutal and unjustified abuses.”
My response to the Blog:
Re: drug use. I would not advocate for legalization without regulation. I truly believe legalization would simply be another form of anarchy and would only serve those who oppose decriminalization of psychotropic substance consumption -- vindication.
Re: King decision. I doubt very much the travesty of the King ruling would have happened without the underlying drug issue. The vast expansion of the “exigent circumstances” exception to the 4th Amendment protections and (to me) the far worse extraordinary extension of the Commerce Clause, which in turn amplified Federalism far beyond the limited government created by the Framers, are bona fide threats to the very freedom we cherish. Being the consummate optimist, I truly believe We, the People, will eventually figure it out, returning this Grand Republic to the Liberty envisioned by the Founders / Framers. We clearly have not reached our collective threshold of tolerance, yet. I am well past mine.

A query:
“I follow your Update From the Heartland Blog. I haven't seen anything recently re Aslan Soobzokov's law suit. I may have missed that particular blog entry? Is there any news about his law suit and his efforts to vindicate his father?”
My reply:
Fortuitous. Actually, yes, I'm working on it now for this week's Update [496]. More to follow. Thank you for your interest.

My very best wishes to all. Take care of yourselves and each other.
Cheers,
Cap :-)