Barack Obama, a personable middle-aged man, inaugurated as the first African-American president of the United States four years ago with an ambitious oath — “Yes, we can.”
However, when Obama swore in for a second term as the country’s top leader on Monday, a man with eyebags, black spots and white hair stepped on the stage.
The article ends on a gloomy note:
Apparently, sad moments overwhelmed happy ones in Obama’s first term, as the number of things he can’t do is far beyond those he can. Even his own doctor admitted that President Obama now looks eight years older than four years ago.
Whether the next four years could be easier for him remains a mystery, but it is for sure that Obama, buried in unstopping affairs at home and abroad, could never be any younger.
My latest post for Full Stop is now online. An excerpt here:
It is probably most accurate to characterize my flying preparations as a mutual fund of sorts, constituted of various types of investments all designed to hedge against utter desolation (a fiery nosedive into a mountainside) and achieve modest returns (a safe landing). Recently, for example, I put off watching The Wire mid-flight in favor of lighter fare to calm my frayed nerves, and I swear Sebastian Edwards’ book on Latin American populists spawned vicious air pockets every time I opened its pages.
Small decisions, too, attain cosmic significance when followed seconds later by a slight shudder of the cabin. Was the weather better when I’d paused Bridesmaids, or is the only way to ensure smooth sailing to watch the entire film at 4x speed? These are not questions to be taken lightly, for upon their successful resolution rests the fate of hundreds of passengers, as well as the ability to understand a damn thing Kristen Wiig is saying at that rate. And no matter which airline I fly, I continue to cringe at the deliberately ominous abstraction of the announcement, “We’ll be on the ground shortly.”
Courtesy of Jeremy Mann and Colossal (http://www.thisiscolossal.com/2013/01/brooding-cityscapes-painted-with-oil-by-jeremy-mann).
For an Internet addict like myself, the last couple weeks have been difficult. Access to foreign sites in mainland China is frustrating at best and infuriating at worst. Specifically, aside from the usual litany of blocked social media sites (Facebook, Twitter, and YouTube, for example), even the New York Times is blocked, and virtually every other foreign site (including Google) takes five times as long to load as it does in the States. Baidu, meanwhile, appears instantly. Ergh.
I just got back to New York yesterday. But during my winter vacation, I’ve been doing some thinking about how to make The First Casualty a better and funner (yes, I have decided that is a word) blog and Internet destination in 2013. Within the next few weeks and months I’m planning to roll out some new — and, hopefully, interesting — ideas for the blog: new contributors, additional features, and so on. Of course, I’ll be continuing the current features and contributors (depending on their availability) as well.
Additionally, I hope to introduce more original content this year. Much of what I posted last year were links to, and excerpts of, other pieces I found illuminating or provocative. I’ll continue to do so this year, but with an added emphasis on producing more original writing — including longform essays and posts — to provide what is hopefully a useful and unique variant to the cacophony of voices on the Web.
Anyway, I’m open to suggestions. Please comment and question liberally. And thank you for continuing to read.
Why you should care about Boyer v. Louisiana: Criminal defendants without the money to pay for their defense are being imprisoned for years without trial, subverting the basic tenet of “Innocent Before Proven Guilty.” (Picture via: http://www.britannica.com/blogs/wp-content/uploads/2010/06/supreme-court.jpg.)
As the dust settles from Monday’s Boyer v. Louisiana oral argument before the Supreme Court, the major news takeaway is undoubtedly Justice Clarence Thomas’ breaking of a nearly seven-year silence from the bench to crack what may or may not have been a joke about the competence of either Harvard or Yale-trained lawyers (the full transcript of the argument is here). Much hay has been made in the press over what Thomas’ joke could have meant–see the near-breathless coverage analyzing the Justice’s mindset here, here and here–but the actual arguments behind Boyer, which explores the limits of the state’s obligation to provide a speedy trial for an indigent death penalty defendant, are interesting enough to merit a second glance as well.
Jonathan Boyer and the state of Louisiana disagree over almost every aspect of what happened on the night of February 3, 2002, when Bradlee Marsh was shot three times and killed as he sat in his pickup truck. While Louisiana maintains that Boyer was responsible–a conclusion bolstered by Boyer’s subsequent confession and the testimony of Boyer’s brother–Boyer claims that his “confession” was fake and that someone else was behind the killing. Regardless of the perpetrator’s identity, all sides agree that after his arrest and indictment for first-degree murder, Jonathan Boyer waited over five years in prison for his trial to begin after Louisiana appointed but did not have the money to fund the two requisite attorneys assigned to defend his death penalty case. (The federal Constitution does not mandate two defense lawyers in capital cases, but Louisiana state court rules do.) It was only after the state decided to drop the first-degree murder charge–a move which took the death penalty off the table and made his case less expensive to defend–in favor of lesser charges that adequate funds were freed up and trial began. By this time, several witnesses had died or otherwise become unavailable. Boyer was convicted of second degree murder and armed robbery and sentenced to life imprisonment without parole. He now argues that Louisiana’s failure to fund his lawyers in the years it spent pursuing the death penalty led to a violation of his Sixth Amendment right to a speedy trial–the remedy for which requires a reversal of his murder conviction.
The Supreme Court outlined in 1972’s Barker v. Wingo a four-factor balancing test for determining whether a Sixth Amendment infringement has taken place: (1) the length of delay, (2) the reason for the delay, (3) whether and how the defendant asserted his right to a speedy trial, and (4) the prejudice that the defendant suffered due to the delay. Depending on the facts of the case, each factor is weighed against either the defendant or the state. In 2009’s Vermont v. Brillon, the Court found that a “systemic breakdown” in the public defender system leading to a delay of trial could be counted against the state. The main question in Boyer is whether a five-year failure to provide funding for the indigent’s appointed defense should similarly be held against the state. A “Yes” to that question doesn’t automatically mean that Boyer’s speedy trial rights were violated, but it does help his case in the Barker balancing.
Unsurprisingly, Louisiana argues that the delay in funding should not be held against the state so long as the state did not purposely withhold the money to avoid trial. Though Louisiana’s prosecutorial offices routinely received surpluses (of hundreds of thousands of dollars) to try cases in the same period of time that Boyer awaited trial from prison, the state maintains that the lack of funds for his defense resulted from other factors beyond its control, like Hurricane Katrina cleanup and the available monies being used up in other capital cases. Louisiana insists that it already dealt Boyer a more-than-fair hand by even bothering to appoint two counsel for him, which was enough to safeguard Boyer’s Constitutional rights.
At Monday’s lively oral argument, the Justices split over whether the delay was actually attributable to Boyer or to the state. Justice Scalia agreed with Louisiana that the state had already been very “generous” in naming multiple Ivy League-educated attorneys for Boyer (which is where Justice Thomas stepped in with his now-infamous four-word joke concerning their competence). Rather than putting the onus on Louisiana to fund the two lawyers required under its own state procedure, Scalia postulated that had Boyer truly cared about getting a speedy trial, he would have waived his state right to two attorneys and proceeded with just the one lawyer required by the federal Sixth Amendment. Justice Ginsburg questioned whether Boyer, a man with an eighth-grade education, knew that this option was available to him. Justice Kagan pointed out that even Louisiana seemed unaware that Boyer could move forward with only one attorney, since it had previously explained the delay by saying it could not “ethically or legally bring [Boyer] to trial” because he had been “without properly funded counsel for so long.” Meanwhile, Justice Sotomayor, who has worked as a prosecutor in New York, repeatedly pressed Louisiana to explain how a state’s choice to fund prosecutors’ investigations (or anything else) over capital defendants’ lawyers could not be attributed to the state.
The Justices also sparred over the scope of the question to be decided. In addition to laying out the four-factor balancing test, Barker v. Wingo holds that speedy trial challenges must be considered on a case-by-case basis, which allows for a far more fact-intensive inquiry than the Supreme Court is used to handling. Several members of the Court, led by Justice Breyer, mentioned repeatedly that the Court’s only job is to consider the general question of whether the failure to fund counsel should weigh against the state in a speedy trial challenge. (If so, they are content to send the case back down to the Louisiana courts for the case-specific reconsideration of whether such a violation occurred.) Justice Scalia, however, believes the Supreme Court should both answer the general question AND perform the case-specific four-factor reanalysis for Boyer. To that end, Scalia spent a significant part of the oral argument focusing not only on the reason for the delay but on whether Boyer and his legal team properly brought up the speedy trial issue in the lower courts, whether he actually suffered prejudice due to the delay, and whether a reversal of his murder conviction would still leave him with a 99-year concurrent sentence for his armed robbery conviction.
If the oral argument is any indication, Justices Alito, Ginsburg, Sotomayor and Kagan agree with Breyer’s general reading of the question presented. These Justices also seem receptive to the idea that the lack of indigent defense funding is attributable to the state. This would constitute the five-Justice majority needed to remand the case to the state court for re-analysis. It’s possible that Boyer could still lose his battle there–notwithstanding a SCOTUS ruling that the failure to fund should be weighed against Louisiana, Louisiana could still win the overall Barker balancing back in the lower court. But even if this happens, the Supreme Court will have (at the very least) sent a clear message to the states that if they keep shunting indigent defendants to the back of the line, they will be held responsible for such decisions.
The jovial man. (Picture via: http://www.article-3.com/wp-content/uploads/2013/01/Justice-Thomas.jpg.)
As for Clarence Thomas’ thoughts on the fundamental questions of the case: who really knows? He hasn’t asked a substantive question at oral argument since 2006, and he certainly didn’t start on Monday. (I’m inclined to agree with Tom Goldstein of SCOTUSblog and Andrew Cohen of The Atlantic when they say the hoopla over the joke was a case of much ado about nothing.) Given the issues at stake, it’s too bad that Justice Thomas’ offhand remark ended up overshadowing the interesting points coming from both sides.* The depressing truth about death penalty cases is that they take an extraordinary amount of effort and resources to defend–money and time must be spent for thorough investigation and expert witnesses, for both the trial and the sentencing phases–and as Justice Sotomayor pointed out, only a very small group of lawyers in this country are even qualified to argue death penalty cases. A defendant with money may be able to hire such a lawyer and pay for the investigation, but the indigent’s court-appointed counsel cannot be expected to pay such expenses out of pocket. And while it’s not unforeseeable that very cash-strapped states acting in good faith may simply not have enough money some years to try or defend all their capital cases, it is brutally unfair to make the indigent defendant bear the brunt of those funding decisions by waiting out that time in prison.
In other words, Louisiana for over five long years subjected an untried Jonathan Boyer to a philosophy of “guilty before proven guilty,” a situation he was powerless to avoid because he had no means of his own to mount a defense and no authority to change the state’s funding decisions. Regardless of Boyer’s culpability for the murder of Bradlee Marsh, the Supreme Court needs to remember that the Constitution guarantees a speedy trial for those found innocent and those ultimately found guilty, for those who can afford to defend themselves and those who cannot. Louisiana needs to be held accountable for its choice.
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*I do wonder what Justice Thomas himself thinks of all the media attention surrounding his comment, particularly when he opined publicly in April 2012 that his fellow Justices should listen more and refrain from interrupting lawyers so frequently during oral argument.
Frank Rich cautions against premature liberal gloating of coming triumphs, demographic or otherwise:
What’s more, the right thinks long-term, and if you look at the long-term, the whole ugly “fiscal cliff” standoff was a win-win for conservatives, no matter what their passing defeats in this week’s deal. The more Washington looks dysfunctional, the more it sows dissatisfaction with the very idea of a Federal government. Yes, Democrats and the White House can argue that polls show that the Republicans would be getting most of the blameif Congress couldn’t reach agreement on the “fiscal cliff.” But that’s short-term liberal wishful thinking. Long-term, this intractable dispute has undermined Americans’ faith in government, period, and the voters’ plague-on-all-your-houses view of Washington is overall a resounding ideological win for a party that wants to dismantle government, the GOP. The conservative movement is no more dead after its 2012 defeat than it was after the Goldwater debacle of 1964.
Silver lining? Social issues, at least, seem to be a winning hand for the Dems:
John Roberts is as political a Chief Justice as I’ve seen — political in the sense of wanting to be well-regarded by mainstream public opinion and posterity. He’s no Scalia-Thomas-Bork right-wing bull in the china shop. Much as I welcomed his upholding of Obamacare, his logic was so tortured that I shared the view of conservative critics that he was holding a finger to the wind and cynically trying to be on the right side of history. His remarks about the nation’s fiscal impasse are content-free and gratuitous — and irrelevant to his constitutional role — but they do reflect his own desire to maintain a noble public image. It was, one might say, a Howard Schulz PR move. If nothing else, this Chief Justice’s continued obsession with his own profile may bode well for the future of same-sex marriage: Hard to imagine that Roberts will thwart a civil rights breakthrough now enthusiastically supported by an overwhelming majority of the young and even not-so-young Americans who will write the history of the Roberts Court.
