Crime
Last week I notified you that April is National Problem-Solving Court Month. Well, it is apparently also Second Chance Month! These two things are related in more ways than sharing a celebratory month. Second Chance Month is “a nationwide effort to raise awareness of the collateral consequences of a criminal conviction, and unlock second-chance opportunities for people who have completed their sentences to become contributing citizens.” While attending your next Second Chance Month party, keep in mind that the average person entering state prison has 11 prior arrests. 99.9% have at least one prior arrest. Roughly 77% have at least 5 prior convictions. Second chances are good. Five chances, not so much. When is hold people accountable month?
Free speech
Also last week, I wrote about the NPR veteran reporter, Uri Berliner, who released a piece criticizing his employer for their politically biased coverage. Rather than taking a hard look in the mirror, NPR suspended Berliner. On Wednesday, in response to his suspension, Berliner resigned. As I noted before, media companies are free to express any opinions they want, unless they are funded by the government like NPR. This hurts NPR’s case for continued funding, but maybe they don’t care about that.
More free speech
Recently, Berkeley Law School Dean, Erwin Chemerinsky, and his wife, law professor, Catherine Fisk, hosted a get-together at their house for some law students. One student, Malak Afaneh, secretly brought along a portable microphone. In the middle of dinner, Malak whipped out the microphone and loudly staged her own pro-Palestine protest right there in the dining room amid the veggie trays and cocktail wieners. Erwin, who was targeted because he is Jewish and had been critical of antisemitism on campus, asked her to stop. When she wouldn’t he rightly threw her out of his home. Malak took this as a major infringement on what she believes is her right to free speech. She reported the incident to the law school, and demanded that Erwin and Catherine be fired, that the University divest from any financial holdings in Israeli companies, and that new classes be offered at the law school on Palestinian oppression. She is considering her options for civil lawsuit and criminal charges against the professors. Perhaps Malak hasn’t taken Constitutional Law or Criminal Law courses yet. When she does, she will learn that there is no right to free speech in someone else’s dining room, and that if they ask you to leave and you refuse, you are trespassing. Let’s hope the University does the right thing here.
Textualism
On Tuesday of this week, the U.S. Supreme Court heard oral arguments in Fischer v. United States. Joseph Fischer is one of the people who entered the U.S. Capitol during the January 6 riots. He was charged, in part, with the federal crime of Obstructing an Official Proceeding under the statute 18 U.S.C. 1512 (c)(2). That statute has two relevant sections. The first section says it is a crime if a person “corruptly alters, destroys, mutilates, or conceals a record, document, or other object with the intent to impair the object’s integrity or availability for use in official proceedings.” The second relevant part, which comes immediately after the first part, says, “or otherwise obstructs, influences, or impedes any official proceeding, or attempts to do so…” Prosecutors have charged Fischer under the second part. They are not alleging that he did anything to a record, document, or object. They are alleging that he “otherwise obstructed an official proceeding,” namely, the activity of the U.S. Congress by riotously entering the building.
Fischer has challenged the application of the statute to his conduct. Historically, this statute has only been used to prosecute businesses that have destroyed or concealed documents to keep them from being used in court. It has never been applied to rioters. The Government argues that the second section about “otherwise obstructing” broadens the scope of the statute to include actions beyond altering documents. The conservative Supreme Court Justices did not seem to buy this argument. Chief Justice Roberts, in questioning the Solicitor General, raised the textualist cannon ejusdem generis, which means “of the same kind or class.” As a general rule, when one clause follows another, as it does in this statute, the second clause is read to be referring to the same “kind or class” as the first clause. Here, the “otherwise obstruct” language in the second clause, if you are following ejusdem generis, would be referring to otherwise obstructing the use of a record, document or object. Fischer’s conduct did not involve a record, document or object. The statute would not apply to him under this rationale.
This case will turn entirely on how the Justices apply textualist analysis. Based on the oral arguments, it appears that the conservative Justices will apply the ejusdem generis cannon, and the liberal Justices will not. I would expect a 6 -3 decision in favor of Fischer. Even if he wins here, Fischer has other problems to worry about, though. He is also charged with battery on a police officer. However, a decision in his favor would impact the cases of some 300 other J6 defendants, including Donald J. Trump.
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