7 posts tagged “justice system”

I was pretty appalled to hear that the killer of 78-year-old Jasmatbhai Patel only got three years today.
   Apparently, provocation is not much of a defence for killing someone in this country, but road rage gets you off lightly.
   Bio O’Brien, 28, with prior convictions for violent crime, was driving his BMW and had an accident with Mr Patel’s van. He dragged the elderly man out of his van and attacked him. When Mr Patel fell to the ground, he hit his head and bled profusely, dying of the injury in hospital the next day.
   I don’t care how pissed off you are that someone dented your German car. There’s such a thing as insurance. And if you are going to get annoyed, the worst that I can ever see a “normal” human being do is get loud.
   I can’t see any diminishing of mens rea if you drag someone from a vehicle, then beat him up. You know you are dragging someone from his van. You know when you are hitting someone. You have formed an intent to do that. No amount of road rage gets a reasonable human being that upset.
   I remember reading about manslaughter and murder in law school, and short of going to my Smith & Hogan to check this stuff, this act is on the extreme side of manslaughter at the least.
   Lesson: if you are going to kill someone, get into a car accident with him first. Then your defence lawyer will argue road rage and a murder rap becomes a tiny three-year manslaughter stretch.
   Or, do it in Auckland, where apparently dragging an old man out of his vehicle and beating him up is evidently such a flippant crime it carries less than half the maximum penalty for manslaughter.

Finally, I have read the judgement from California about gay marriage. It may be prudent to post a comment from an earlier post, in response to a commenter, Madonna. I should note that I am not part of a conspiracy behind an ‘anti-gay industry’ or ‘“ex-gay” head cases’. I’ll also refrain from saying ‘You’re not bright,’ as you did to another Voxer, but I will begin with your own words, ‘Let me educate you.’ One proviso: I have read fewer Californian cases than, obviously, someone trained in an American law school. I have written based on what I have observed with Californian and American cases.
   It may also be instructive to read the below in conjunction with the previous post, also a response by me to a commenter who was considerably more civilized, in where I deal with Perez v. Lippold in more depth.

After having read the majority opinion, I remain unconvinced. While I agree the article is biased, I have to come to the same conclusion as Justice Baxter, principally for many of the reasons I outlined above.
   This may be time, now, to address Madonna’s points.
   First, Madonna, your attack on another commenter is unwarranted, and it’s a shame you would deny her her opinion from the outset without putting your reasoning first. It would not be unfair to dismiss anything that came afterward from you.
   I can equally attack you with your words:

No rational person can criticize the Court's decision here without having at least a basic understanding of the governing California precedents. Anyone who condemns this ruling without having that understanding will be demonstrating a profound ignorance of -- and contempt for -- how the law works.

Precedents do not govern, they persuade. And if you do look back at Californian decisions, regardless of whether the issues are as controversial or not, they show a gradual, progressive moving forward of the law, catching up to public opinion in many cases. I believe you are ignorant of this basic fact of how the law has worked in California and, indeed, your own country, based on this very general, sweeping proposition. Indeed, Perez itself shows this, and I find the lead judgement in particular to be very, very clever.
   These precedents which I have at least enquired into do show some persuasiveness but none of them get around the problem California has with the Governor’s vetoes. The fact that the ‘a man and a woman’ definition has been placed in really do not help supporters of gay marriage. So we are essentially stuck with the position that I stated in my comment to the Gay Curmudgeon.
   Effectively I believe that the law has been circumvented, and not very cleverly, the majority judges trying to bury the core issue with legalese.
   Your bill argument is unconvincing. If the Governor’s position is so dead wrong, then vote the man out. I come back to the basic idea: the judge’s role is to interpret the law. And a bill is not law.
   As are your arguments, from a legal standpoint, about polls (not really a consideration generally for courts, though they are slightly persuasive), while another state’s court ruling is based on the legislation of that state.
It is also irrelevant which party appointed the judges.
   The position I had in the above post, then, is the one I must take. Perez shows how a clever court gets around restrictive legislation. You obviously believe that the law is restrictive and unfair here and perhaps even offends public policy. I respect your view. Common law precedents are littered with cases where the court has got around such law. The court in this latest case has not done its job and I would say that if the majority had an agenda to accept marriage for same-sex couples, then it has done it in a clumsy way that opens the case for future attacks.
   Even if I were on your side totally—and I am not saying I am totally against you, either—I would advise you both to continue campaigning for your cause, because this judgement is weak when compared with others that have, let’s say, pushed the law in a certain direction.
   Your battle is far from over though given current trends in the California, you may yet win. However, I will guarantee you now that it won’t be on this decision.

The following is a comment in response to the exchange from my earlier blog post on gay marriage in California. I believe it is important (for my own ego!) to address charges that I am prejudiced against gays or am a bigot. It is a pity that while I am open to seeing the other side of the argument in favour of gay marriage in California, as a heterosexual man I am already labelled (prejudged) as being incapable of that.
   I am going to Lawcrawler to see if I can find this controversial judgement and will give my thoughts on it later.

T. G. C., I am reading your extract short of seeing the full judgement, and I find it somewhat unconvincing.
   Let me address one point: the article I posted is an article I posted. Simple. I do find it somewhat offensive that you and Madonna would attribute its position to me when even I have not done so. Yes, you may feel it has a personal endorsement by its mere appearance here. In that case your opinion of me is forgiveable. I can understand that the article inflames certain passions. However, it is my opinion that if the article were fair, then the judges in this case do not understand their jobs.
   A bit about my history, so at least we can get on the same page here. I have a fairly good grasp of the law as I am qualified with an LL B. I live in a country that was an early pioneer in homosexual law reform and has a proud tradition of embracing lifestyles that traditionalists would be appalled at. I could probably even find you two gay couples who would attest to my views on the subject that I would say most gays (here) would believe are reasonable and fair.
   My posting an article is for promoting understanding, certainly my own, and certainly, too, to contrast the way your country handles legal positions against the way my one does.
   Let me take one of your highlighted points:

we disagree with the Attorney General and the Governor to the extent they suggest that the traditional or long-standing nature of the current statutory definition of marriage exempts the statutory provisions embodying that definition from the constraints imposed by the California Constitution, or that the separation-of-powers doctrine precludes a court from determining that constitutional question

   Obviously without reading the statute I am less informed, but this is fairly true: in general, in most common law jurisprudence, courts to interpret laws in line with (state or federal) constitutions.
   Then, however, we have a conflict if the definition of marriage is codified, and this is perhaps the stem of the conflict more than anything.
   Traditionally, even when legislation is interpreted in the spirit of a constitutional document—a familiar argument here given the Treaty of Waitangi—it is not done by completely violating the wording of that legislation.
   To you and Madonna, it may be an issue of what the public wants, but if you have a Governor who keeps vetoing such bills, then I find it unconvincing that we rely on those bills in legal interpretation. In fact, this fact alone illustrates the law’s insufficiency at this present stage for those supporting gay marriage.
   The judicial task when faced with wanting to respect the will of the people and equal-rights doctrines in a constitution is to find third ways, clever exceptions that provide citizens with what they want without violating the legislation before them. This is a given in common law.
   While this means that gay marriage will take far longer to be recognized if this is the prevailing trend, law is something that takes decades to remould, but it should not be short-circuited.
   The law of negligence is a classic example in tort: probably most law students will recall this took decades before the landmark Donahue v. Stevenson case in 1928 and Lord Atkin’s classic judgement.
   Laws are slow, they are often reactive, but it is the system we are laboured with. An ideal world would be one without laws and with self-regulation between people acting with their complete free wills. I hold this to be an ideal and it matters, at the end of the day, little what definitions state about this word or that—but it does matter to me that while we have our current system, it is conducted fairly until the people decide on another system again.
   You bring up Perez v. Lippold. You are right that this is actually highly convincing and I thank you for reminding me of it. I do know a little about this case but there are some distinctions based on religion, the Fourteenth Amendment and constitutional interpretation, and these really helped the couple there. The respondent also presented some heavily biased opinion that the court saw through.
   There was indeed a law written in statute that barred the marriage of the couple in that case, one that was, admittedly, steadily eroded by the courts as it expanded the definition of marriage to increasingly more races.
   The court held (inter alia) that the sections in that legislation were too vague especially when it came to racial classifications—which was how ultimately it got around the interracial ban.
   You see, there was no legislating from the bench: the judge in Perez showed how lacking the legislation was, how it offended the basic tenets of the requirements of American law, and it was effectively a challenge to the legislature that: if you want to block us, revisit the law and redraft it if you dare. This I accept as this fight goes on all the time in a democracy.
   This is why I asked you and Madonna to find me the judgement, though since I haven’t heard back, I’ll have a trawl through Lawcrawler myself in a sec.
   Without clever methods of finding a way around fairly strictly worded statutes, I do believe from what little I know (yes, maybe I shall accept the ignorance charge) the judges crossed the line here.
   Contrary to your and Madonna’s biased views of me, I retain an open mind.

We’ve ended January 2008 here in New Zealand with 10 murders. The government is saying this is an anomaly, but is it?
   Crime has been rising in New Zealand steadily since I have been observing the numbers and for older New Zealanders, the latest figures are a disgust.
   I am not overly surprised, given the rising gap between rich and poor, suggesting a mismanagement of the economy and an absence of jobs, while values and education have suffered at the same time.
   Those older New Zealanders who can remember back to the 1950s remember a country with roughly half the population and 18 convictions for murder between 1951 and 1957.
   I realize actual murders and successful convictions are different, but assuming that there were a couple of murders in this period that didn’t lead to a conviction, then we’re still looking at 20 over a seven-year period from January 1951 to December 1957.
   That’s roughly three per annum. If there’s double the population now, then we should expect statistics to show that there are six per annum for 2008.
   Remember that medical science wasn’t as advanced, so if we adjust for that, then maybe this estimate isn’t actually that far off.
   In this election year, I wouldn’t buy any party line that says things are all right. I wouldn’t even buy policies that talk about tougher sentencing. Because neither of these address the root problem.
   We need policies in New Zealand that say: we will address this rich–poor gap.
   How? Well, how about recognizing what’s going on instead of kowtowing to multinational corporations operating here?
   Since the end of Muldoonism, New Zealand has become the poster boy of the technocracy, doing everything that the economic experts said should work: privatization, free markets, the ending of tariffs.
   Ask yourself, even in the last five years, can you afford more or less of the things you want in your life? I don’t care if you are a student or a wage-earner or even a small business boss. The answer is probably no.
   When will we wake up and realize that these policies have driven a wedge between the rich and poor in a nation that once prided itself on being a fair, just, middle-class country?
   Since Labour sold off so many state assets in the 1980s, something National continued doing in the 1990s, we now have a lot of things in the hands of foreign corporations.
   Now, if these corporations were running these assets more efficiently, logically the government should be able to increase its tax take, which leads to more money for hospitals, schools and social services.
   But the idea of being a private corporation that spreads its activities across different countries is the ability to minimize the tax you pay, by writing some of it off with the operations you have in other places.
   So the opposite has happened. Meanwhile, these corporations have shed staff so the people who used to work there wound up on the dole, and there’s less money to pay out.
   The rich in cahoots with the big companies have done well while everyone else has suffered.
   To make up the shortfall in government coffers, the Labour Government introduced Lotto and basically became the biggest attraction for gamblers. Now we are reporting a rise in calls to gambling helplines.
   The other idea behind liberalizing our markets was so New Zealanders could go and compete globally. But how were we expected to make that leap? Even the richest New Zealanders of the 1980s didn’t survive the decade in good financial shape.
   We need to innovate and create and start new businesses but the support, as any entrepreneur will tell you, is not there.
   Yet New Zealand is a place of great, novel ideas that often stay dormant, unless that Kiwi goes offshore and has a foreign company become interested.
   I have repeated this example many times: if TradeMe was really that successful, it would have bought Fairfax, not the other way around.
   The solution must be to have New Zealanders own New Zealand businesses, so that New Zealanders have jobs and taxes and profits stay in New Zealand.
   This is not about putting the barriers back up. The multinationals have embedded themselves too much into New Zealand.
   We can only hope to create global businesses that do for us what the multinationals have done here. We also need to encourage entrepreneurship at the small- to medium-sized business level so that everyone can have a chance to get his or her idea off the ground, beating the world. We are still blessed with a fairly good internet infrastructure that can become a useful tool for New Zealanders. 
   We need to consider tax policies that help the poor and penalize the sources for the inequity in New Zealand. The next government needs to play, essentially, Robin Hood. It needs to create policies for the middle class of New Zealand and what makes them happy wage-earners or self-employed business people, because that is where the majority of the tax will come from. ‘Teach a man to fish and he will eat for life.’ Time to stop handing the fish out and pretending it was a conjuror’s trick. (It was only cool when Jesus Christ did it with the 5,000, anyway.)
   And while I am a globalist at heart, this economy is too small at this point to allow technocratic policies to have free reign, without someone seeing to the interests of the Kiwis that need the most help. I want to see food banks disappear in five years because everyone has a job.
   An innovative government that might create new businesses itself can be a useful agent in the business community. In the 1970s and 1980s, New Zealand’s dual-fuel natural gas infrastructure is still a dream for most countries. Yet a huge percentage of the nation’s cars ran on natural gas back then, able to fill up at the majority of stations across New Zealand.
   Government participation in a modernized Keynesian model could just work in 2008 and one only needs to look at Singapore and Malaysia for nearby adaptations of the very policies New Zealand had only 30 years ago.
   No one can claim they are paupers, and Malaysia itself did find, in 1997, that the technocratic way of thinking didn’t work for them. Having a strong man as a prime minister worked in its favour as Dr Mahathir bin Mohamad was able to say what he thought of the corporations wreaking havoc on his country’s financial markets.
   And with relatively little corruption in New Zealand, government innovation is not a bad idea, provided these state enterprises do not get overmanned to the levels they were at in years past.
   Remember, Absolut, the people who make the vodka, is a government-owned enterprise. No one seems to urge the Swedish Government to divest for the sake of the technocracy.
   Then, those who might find themselves in similar situations to the 10 murderers won’t suffer from envy, depression or rage.
   In the 1950s, New Zealand had about nine people unemployed. In the 2010s, we should be looking at 18. Full employment is key and the policies we are following now—policies which Labour and National predict they will essentially follow—won’t lead to any change in our rising crime rate or the widening gap between rich and poor, which neither party has even mentioned in the lead-up to the 2008 elections.

I love it. Dr Jay Parkinson of Brooklyn, NY, has gone online with his practice:

http://www.inter-actions.biz/blog/2007/10/is_there_a_doctor_in_the_house.html

That means you can reach him via electronic means and he will do diagnoses accordingly, even after hours for emergencies.
   Now, I would love to see lawyers do this. Even an e-court. Parties or their attorneys feed in their evidence to a site with limited fields and a judge decides. No emotion, no BS. The decision comes swiftly. Any mitigating factors can be fed in, but lawyers would be encouraged to write everything briefly. They would be unable to hide extra charges. And if they think anything’s been missed, then the process could go to appeal before a live court.
   It would lower the price of getting justice because the system would no longer need to support a live District Court, and appeals would be at the current price of the original claim. It would also make things faster.
   Best of all, the legal profession, branded as shysters even in Shakespeare’s day, would appear more transparent. It would start going up the ladder in people’s minds.
   I would love to see a country like Singapore, or even New Zealand, give this sort of thing a shot. Singapore prides itself on e-governmental processes and this would be an ultimate test. New Zealand’s system is far too entrenched but I’d love to see a party adopt this idea.
   It’s far too radical for Labour, and certainly would be gobbledegook for National.
   Greens? United Future? The Alliance?

Just to show how distraught he is at having the wrong trousers which necessitated him to sue a hard-working Korean couple for $54 million, Judge Roy Pearson burst into tears in court today.
   Ah, so he’s not just a vindictive prick: I happen to share the Chungs’ attorney’s viewpoint here.
   My opinion: what a goddamn phoney. It’s not like the trousers were being controlled by an evil penguin or rooster or something.
   I hope that all dry-cleaners in the Chungs’ region have little signs of Judge Pearson in their shops with, ‘Do not serve this vindictive bastard’.
   The Judge may find, to his surprise, that signs in consumer law are to be interpreted through the eyes of the reasonable person, not unreasonable, over-the-top, over-the-hill, overreacting morons, and that the quantum of damages is likely limited by that.
   Not everyone is as vindictive as he is, certainly not his colleagues on the bench who will feel this man has made a mockery of everything the US justice system is meant to stand for.