Category Archives: Justice System

Boulder’s Transportation Culture

October 9, 2009

The sooner Boulder’s transportation culture changes, the better. The challenge is that too many of our neighborhoods are not walkable or bike-able today; they were designed for automobiles. The planning assumption was you could rely upon cheap fuel to carry you, in a car, whenever and wherever you needed to go.

As we struggle to re-insert pedestrians and cyclists into our transportation infrastructure, all the blinking lights and shouted warnings we’re installing won’t change human nature. When you’re behind the wheel of an automobile, pedestrians and cyclists are not a threat. Your brain will take note of the semi-trailer truck your eyes see, but the poor bicyclists and walkers can be filtered out.

To bicyclists and pedestrians, Rule 1 is: you’re “invisible.” Rule 2 is: if a driver can see you, they will try to kill you! Every injured bicyclist I met as a municipal prosecutor told me the same story: I made eye contact with them, they “saw” me, and then they ran me over. No, they didn’t see you. Their eyes were gazing in your direction, but their brain, safely encased within their cranium, which was safely encased within a 2,000 pound steel shell on wheels, didn’t care.

Every driver should look carefully for what they can not see. Where are the blind spots? Where are the pets and people? Instead of looking for what can kill you, look for what you might kill – two very different points of view. Courtesy is contagious – just do it!

High Crimes & Misdemeanors

September 25, 2009

Article II, Section 4. The President, Vice President and all civil officers of the United States, shall be removed from office on impeachment for, and conviction of, treason, bribery, or other high crimes and misdemeanors.

I couldn’t help but wonder what the hell “high crimes and misdemeanors” meant in 1787, particularly given the debate over Richard Polk’s offense and Boulder’s similarly vague Charter language.

Here’s what I found:

Professor Joseph Isenbergh’s [The Law School, The University of Chicago] research notes the answers can be found in the treatises of Coke and Blackstone. These texts were widely read and followed by judges and lawyers of the period and recognized as authoritative sources by the Framers of the Constitution. For example, Blackstone’s definition of treason was adopted verbatim in Article III, Section 3: “Treason against the United States, shall consist only in levying War against them, or in adhering to their Enemies, giving them Aid and Comfort.

Blackstone explained that “high crimes” were criminal acts committed “against the king and government.” Coke’s treatise distinguishes “high treason” as a crime against the “royall majesty,” as compared to “petit treason,” a crime against “subjects and inferiors.” A “high crime” was a crime against the sovereign, as opposed to garden variety crime which did not strike at the institutions of government or the life of the state.

In the first version of Article II, Section 4 adopted by the Constitutional Convention of 1787 the Founders specified “high crimes and misdemeanors against the State.” The last three words were changed to “against the United States” and were later deleted in their entirety by the Committee on Style, which was charged with editing, but not altering the meaning of, the Constitution.

The term “high” crimes had clear meaning in 1787 and nothing has changed the meaning of these terms in the interim, until certain members of the House Judiciary Committee in 1998 decided to characterize private misconduct as an affair of state. President’s Clinton’s questioned testimony in a private lawsuit that was dismissed for lack of merit, his lawful assertion of executive privilege, his dictionary-correct definition of sexual relations as coitus in his Grand Jury testimony and all that occurred with Monica Lewinsky are not high crimes.

The overwhelming majority of Americans know that President Clinton has done nothing that strikes at the heart government, or imperils the operation of its institutions or offices. That is why public opinion strongly supports his retention in office.

The Judiciary Committee of the House of Representatives relies on private affairs, that are not crimes against the operation of government, as the basis for rescinding a national election and removing President Clinton from office. Sexual misconduct was never intended by the Founders as a “high crime” and cause for impeachment. The American public should forever condemn this action as an oppressive, unjust and partisan violation of the Constitution and gross disregard of their rights.

An article authored by Neil Kinkopf, published in Vol. 63, Nos. 1 & 2, of the Law and Contemporary Problems review, observed:

The constitutional category of impeachable offenses comprises “Treason, Bribery or other high Crimes and Misdemeanors.”4 The concluding phrase, “other high Crimes and Misdemeanors,” is indefinite. While the matter was pending in the House of Representatives, the phrase’s meaning became the subject of frequent discussion and controversy. There is broad agreement among scholars, members of Congress, and other commentators that a necessary element of any high crime and misdemeanor is great injury directly to the constitutional system of government.

Controversy erupted over whether “high Crimes and Misdemeanors” includes an additional necessary element of an impeachable offense. The argument, based on a variety of sources, claims that the scope of impeachable offenses is further limited to official misconduct. Thus, impeachment is available only for serious public harm caused by a civil officer acting in an official capacity. Unofficial or private misconduct, it was argued, is beyond the scope of the impeachment power.

This argument was most prominently advanced by the 443 law professors who signed a letter addressed to then-Speaker of the House Newt Gingrich. The professors contended that the House should not impeach President Clinton, basing their argument primarily on the ground that a necessary element of a high crime and misdemeanor is the “grossly derelict exercise of official power.”

While President Clinton was undoubtedly a cad, his actions did not threaten “our constitutional system of government. The same can not be said about the actions of, as Garrison Kielor likes to say, “the Current Occupant.”

That said, I tend to agree with Tom that the formal institution of impeachment proceedings against either the President or the Vice President, would likely divide the country on partisan grounds, shedding more heat than light, while diverting our attention from more important issues. This presumes that no principled distinction would be generally accepted by the public between the grounds cited by Republicans for impeaching President Clinton and those that might be cited to support impeachment of President Bush or Vice President Cheney.

I would still like to see the impeachment issue raised in the context of drawing the above distinction, even if no formal proceedings are commenced. Defense of the Constitution is no vice and the power of impeachment is the people’s last defense against abuse of executive branch authority. Left unchecked, an imperial presidency based on omnipresent threats from enemies, both seen and unseen, along with misguided “patriotism” has the look and feel of fascism – the greatest threat to democracy, in my humble opinion, because it usurps the power of the people through misrepresentation of the facts, intimidation of critics and exploitation of fear.

It may be politically unwise to try to impeach a lame duck administration, but that does not diminish the need to revive the legitimacy and viability of the power of impeachment.

Ed Byrne

Prosecutorial Discretion

September 25, 2009

I would add “zoning enforcement policies, practices, procedures and philosophies” to the list. The County’s current zoning enforcement mindset, triggered by a mere phone call (anonymous or not, personal vendetta or not), has the staff scrutinizing Google Earth photos while relying upon incomplete, “prehistoric” county land use records as Teflon-coated bullets. Proof “beyond a reasonable doubt” (the criminal action burden of proof) ought to engender some prosecutorial hesitation on their part, along with more willingness to seek cooperation instead of absolute submission from the poor landowners who end up in their cross hairs.

Some of the landowners currently having to defend themselves are paying a consequence for actions taken by sellers several transactions removed from their contract to purchase. Witnesses are hard to find, let alone substitute defendants. It’s the land use regulatory equivalent of kicking the dog because your boss yelled at you. The legislation that created “civil” zoning enforcement authority merely lightened the County’s burden of proof (proof “by a preponderance” of the evidence), while it purports to eliminate any potential county liability for malicious prosecution or attorney fees

The proper exercise of judicious prosecutorial discretion ought to be a critical consideration in all governmental enforcement, since government has lawyers, guns and money provided by the public, particularly in the context of a complaint-based zoning enforcement approach that hands these publicly provided powers to any neighbor with a grudge.

At the moment, the land use staff is, in effect, treating their attorneys as potted plants, requiring blinders-on enforcement, and leaving it up to county judges to find where justice may lie in a particular case. The County’s current approach is creating or rewarding informers, snitches and officious intermeddlers, not law-abiding citizens.

I was instrumental in establishing the City of Boulder’s zoning enforcement program in 1986, and we soon learned that neighbors are not always “neighborly.” Rather than blindly hand government to people who were settling scores, we referred cases that involved long-simmering neighbor/neighbor disputes to the City’s free Mediation Service. This proved to be a far more effective way to bury, not sharpen, the hatchets. Boulder County should do this, too.

The County should also consider a 6-month zoning amnesty program, while facilitating real estate transaction full disclosure rules to surface latent violations prior to sale, in order to encourage voluntary compliance. Lying in wait is the behavior of predators, not public servants.

Ed Byrne

Marijuana Decriminalization

Daily Camera, 4/18/2009

Our prisons are overflowing, our border with Mexico is a free fire zone (both sides supplied by U.S. arms manufacturers), our need for tax revenues is increasing exponentially and our resources for law enforcement are stretched to their limits. Prohibition of marijuana isn’t working any better today than prohibition of alcohol worked in the 1920s.

Police chiefs all over the country are beginning again to use the “D” word (Decriminalization was popular in the 1960s and early 1970s), but now they do so for practical, not simply philosophical reasons. Keeping pot “illegal” has not enabled educational efforts to administer a coup de grace, though it has placed many otherwise law-abiding and non-threatening people behind bars (mandatory sentencing guidelines too often tie the hands of thoughtful judges).

Marijuana is less addictive than nicotine and causes far less harm directly to the body (and indirectly to other people) than alcohol. To the extent irresponsible use leads to unlawful behavior, enhanced penalties can remain (i.e., stop sign sober, 4 points; stop sign under the influence, 8 points and up). However, those laws exist today and pot-smokers are not our DUI problem. They are more of a threat to Frito’s than to other drivers.

Finally, keeping pot’s use criminal means users with substance abuse problems must weigh legal repercussions before seeking help. Legalizing its use, but regulating its production, potency, and distribution – while taxing the bejesus out of it – will ultimately result in far more societal good than harm.