Prepare to have your mind blown

This is an actual newscast from a TV station in Cleveland, covering a trial where cameras weren’t allowed in the courtroom:

Via Warming Glow.

Where the nanny state leads

When you keep infringing on people’s freedom “for the children,” a little at a time, eventually you get something like this:

Anurup and Sagarika Bhattacharya – an Indian couple from Kolkata are living a nightmare in Norway. Their children – a three-year-old son and one-year-old daughter – were taken away from them by Norway’s child protective services and placed in foster care eight months ago.

The drastic measure was taken because, according to the child protective services, the couple were not bringing the children up properly. What did they do wrong? They fed the children with their hands and the infants slept in the same bed as the parents.

“My son was sleeping with my husband. They said he should sleep separately from your son,” said Mrs Bhattacharya.

“Feeding a child with the hand is normal in Indian tradition and when the mother is feeding with a spoon there could be phases when she was overfeeding the child. They said it was force feeding. These are basically cultural differences,” said Mr Bhattacharya.

Recently, the Indian Embassy in Oslo stepped in and an officer even met the children, though the parents were not allowed to.

Reason‘s Shikha Dalmia says the parents have not been allowed to even see the children for the past eight months.  For this.  But remember, the government always knows best.

What’s going on with the internet today?

Many prominent websites, most notably Wikipedia, are going dark today to protest two ham-handed anti-piracy bills making their way through the United States Congress:

What exactly is blacked out?
The English-language version of Wikipedia is offline and has been replaced with a message related to the anti-piracy legislation going through Congress, SOPA, in the United States. Other language editions of Wikipedia will be unaffected.

Additionally, popular community website Reddit has also gone offline, as well as Boing-Boing and several smaller websites.

WordPress is suggesting users black out their own websites, but is not forcing any blackouts.

Whoa, SOPA? What the heck is that?
SOPA, which stands for the Stop Online Piracy Act, is a piece of legislation in the U.S. House of Representatives. The act is designed to target copyright infringers online through a series of harsh penalties.

In the U.S. Senate, a separate companion bill is called the Protect Intellectual Property Act or PIPA.

[...]

…Why do the SOPA opponents say it would turn the Internet into a police state?
Several of the provisions in SOPA force American Internet service providers or ISPs hosting websites to remove a site from the Internet if there’s a claim it’s infringing against copyright, even if it has not been fully proved in court. The argument is that this would make it easy for someone to make false or weak claims to take a website offline while the case makes its way through the courts.

Additionally, it would force ISPs to block non-U.S. websites accused of having infringing material, meaning sites from other countries might not be available in the United States. Opponents say this might destabilize the Internet and allow loopholes for hackers to exploit.

Which sites that I use would this affect?
Most obviously, Wikipedia. There are millions of users who constantly update the site, and sometimes things are posted that might have questionable copyright provenance. If Wikipedia were shut down or blocked every time it was challenged over copyright, the site would likely cease to function.

YouTube would be another site that would be harshly affected by the measures. Since millions of people upload videos to YouTube, sometimes copyrighted material slips through. Currently, this is dealt with by individual videos being taken down after a complaint. Google has stated YouTube probably wouldn’t exist if a SOPA-like law had been in effect in 2004 when the site launched.

Some interpretations of the bill say that sites that even link to other sites accused of infringing might be at risk.

Basically, any site that has a large user-generated component is worried about SOPA.This is the document Wikipedia references when explaining why they are against the bill.

Google has posted an online petition against SOPA and PIPA, which I encourage everyone to sign.  More from the Cato Institute and The Globe and Mail.

Eric, Lola, and division of property

This week, the Supreme Court of Canada will revisit the issue of whether common-law spouses are presumptively entitled to an equal division of family property:

They’re known as “de facto spouses.” Partners in a paperless marriage. Or, in this case, plain old Eric and Lola.

But there’s almost nothing ordinary about the tale of a 51-year-old Quebec billionaire businessman and a former Brazilian model, whose messy legal battle could change life for millions of Canadian couples.

Their case, which reaches the Supreme Court of Canada [this] Thursday, is expected to decide whether common-law spouses have the same rights as married couples to support and sharing of property after a break-up.

While the case is likely to have its greatest impact in Quebec, legal experts predict that if Lola succeeds in her landmark challenge, eight other provinces and territories that deny property rights to unmarried spouses, including Ontario [and Nova Scotia - DJP], will be forced to rethink their legislation.

As a starting point, common-law spouses should have the right to both alimony and an equal share in property, argue lawyers for the Women’s Legal Education and Action Fund (LEAF), an intervenor in the case.

[...]

Looming over the case is a 2002 decision by the Supreme Court involving Susan Walsh, a Nova Scotia woman who sought a share of her late common-law husband’s assets. In that case, the court’s 8-1 majority upheld a section of Nova Scotia’s Matrimonial Property Act, which gives only married people a share in a partner’s property.

The court said excluding common-law couples was a way of respecting their decision to avoid marriage because of the legal obligations that go along with it.

LEAF argues it is time to revisit the Walsh decision, saying the court in 2002 did not have the benefit of social science research that shows when people move in together, they aren’t motivated by legal considerations.

In fact, North American research over the past decade has shown that most couples who live together are under the mistaken impression they already have the same rights as married couples.

Via @John_Magyar.

Family finances shouldn’t be a secret

Mindelle Jacobs of the Edmonton Sun, on the importance of sharing financial information:

Marie got the shock of her life at a routine mortgage renewal meeting, when her husband told the bank manager he’d racked up $22,000 in credit card debt.

“I had no idea,” recalls Marie (not her real name). “I would never have guessed it was that much. My blood pressure went up.”

That one spouse would hide extravagant spending habits from another is no surprise to family lawyers. Arguments over money are probably the biggest stressors on relationships.

When a saver marries a spender or when there’s no reasonable compromise on money management, the consequences can be dire – insistent creditors, bankruptcy or divorce proceedings.

“In my experience, it’s probably more common than not that a spouse doesn’t know every financial detail (about the other spouse),” says Marla Miller, an Edmonton registered family mediator and collaborative family lawyer. “It’s very rare that both spouses . know absolutely everything.”

Grant Gold, head of the family law section of the Canadian Bar Association, agrees. “It happens more often than you would think – that people run separate financial lives.”

The Toronto lawyer says he recently settled a divorce case in which the biggest stumbling block was that the husband didn’t know that his wife had accumulated $60,000 in debts.

“It’s relatively common. It speaks to problems in the marriage. And it speaks to the need for couples to communicate in advance about things like that,” says Gold.

Via @MarlaGilsig.

Crack is whack

I saw a guy wear one of those “It’s not a BEER GUT – it’s a fuel tank for a SEX MACHINE!” shirts to court once (yes, of course he was charged with alcohol-related offences), but this is even better:

A convicted felon reminded a Florida [of course - DJP] courtroom last week of the recipe for making crack cocaine by choosing to wear a sweatshirt covered in drawings of how to make the illegal drug.

Christopher Patterson appeared in the Fort Lauderdale court on Jan. 6 to face charges for the distribution of oxycodone, a painkiller, according to a story posted on The Smoking Gun.

A photo of the sweatshirt, taken by defense attorney Michael D. Weinstein, shows a colourful garment covered in cartoon drawings of spoons, white powder (baking soda, presumably) and an open flame — the necessary items for cooking crack.

Obligatory:

Every Father’s Nightmare

Two B.C. fathers were awarded sole custody of their children in Canada – but the mothers abducted the kids and took them to Europe, and they’re getting away with it:

Two Canadian fathers whose children were allegedly abducted by their mothers and taken to European countries say authorities have done little to try to enforce court orders and bring them back.

“I’m holding my hands up going, ‘Can somebody please do something about this?’” said Calum Hughes, whose five-year-old daughter Livia was allegedly abducted by her mother from B.C. and taken to Italy in 2009.

…

The latest RCMP figures show there were 237 reports of parental abduction in Canada in 2009 and 41 per cent of the children were under the age of five.

More than half the cases were resolved or withdrawn within a day. RCMP spokesperson Julie Gagnon said she didn’t know how many of the remaining children were taken to other countries.

She said when there is a warrant, as in the Hughes case, the RCMP can ask Interpol to put a “red notice” in the system, so the alleged abductor could be arrested at any border crossing.

She said, depending on the country and the case, extradition can also be initiated.

However, Hughes said he heard nothing from the RCMP after a charge was laid against his ex-wife two years ago.

…

Both fathers made Hague applications. Italy refused to send Livia home, though, because the court believed his Italian ex-wife’s assertion that Hughes was an unfit father, allegations that were rejected by a Canadian court.

“That’s all needless details and garbage,” said Hughes. “I’ve spent over a hundred thousand dollars and how many hours in court. I’ve ended up with nothing in terms of a relationship with my daughter. “

Mezo’s application is stalled in the Hungarian court system, which has sympathized with the Hungarian-born mother of his son.

“The Hungarian court said that ‘well there is no warrant out for her. She didn’t do anything wrong in Canada. So therefore we take it all with a grain of salt whatever the judge ordered in Canada,’” said Mezo.

If you have reason to believe the other parent is planning to flee the province with your child, get a lawyer to make an emergency application for an non-removal order.  Once they’re in another jurisdiction, the process instantly becomes more time-consuming, complicated, expensive and emotionally exhausting.

If children set the rules for divorce

A must-read list by Kara Bishop at the Huffington Post:

In week six of Children of Divorce and Changing Families’ 8-week program, we do an exercise where we ask each child in the 10-12 year old group to create a set of rules that they wish their parents would follow to ease post divorce stresses.

The rules they write privately are then shared with the class, the goal of which is to create a list to present to the parent’s group. Rules that start out specific to each child merge with other similar requests. The kids tweak the wording for these and other parallel rules until “stop saying mom is stupid” and “don’t tell me my dad abandoned us” gets written down on a large strip of paper as the all encompassing: “Don’t say bad things about my other parent”.

The top ten rules listed below were the most commonly wished for, compiled from the many times I’ve conducted this exercise (3 times a year for the last 5 years).

1. Don’t Say Bad Things About My Other Parent

This rule comes up every time we’ve done the exercise and almost always in the top five. It also seeps into many other exercises, from one where kids express their feelings artistically on postcards…to one where kids role play an advice-giving radio talk show. They really want to know how to stop the “bad-mouthing,” especially those kids who have actually asked their parents to stop only to be told “you need to know what kind of person your ____is” or, “it’s not bad-mouthing if it’s true.”

The kids want you to know that they “don’t care if it’s true;” they just “want it to stop” because “hearing bad things about someone I love hurts my heart”.

The above rule is so pervasive that even after isolating it, it haunts our next rule:

2. Keep Us Out Of Adult Stuff

Bad mouthing the parent doesn’t have to be an outright proclamation. It can be the subtle or not so subtle release of information beyond the child’s years of comprehension and/or need to know. There is no educational or emotional value in telling a child, “there will be no ____ because your other parent is behind on child support,” or “your ____ left us because they’re boinking a co-worker”.

3. Don’t Make Me Feel Bad For Loving The Other Parent

At 11, Aaron (the inspiration for my work in this area), was the only child of three still willing to endure his mothers wrath in order to continue seeing his dad. He braved being called “stupid just like your dad,” constant questioning — “why do you want to be with the person who broke up our family?” — and having his bags packed by the front door after being told, “if you like him so much, just go live with him.”

By 14 he had given in, but only after the entire other side of the family sat him down and told him he was being a “traitor to his real family” for continuing to see his dad against his moms wishes and that he had to choose “us or him.”

What I really want parents to understand is that while they may think their actions are only punishing their ex, they are also (and often even more so) punishing their child.

I’m pretty sure every parent reading this can imagine how sad and deprived their child would be without their special love. Can being deprived of the other parents’ love be any less sad? With that knowledge, would you still do something that makes your child any degree of sad, just to punish your ex?

Your Facebook photos may be held against you

Courts are still grappling with admitting social media postings into evidence, but there are several reported cases where litigants’ Facebook pictures were deemed admissible:

The first decision rendered in Canada on this subject came from the Superior Court of Justice of Ontario, which had to rule on the admissibility as evidence of photographs published on Facebook.⁴ The Plaintiff had instituted an action relating to bodily injuries suffered in an automobile accident and alleged that the consequences of her accident were loss of enjoyment of life, a reduction in her activities and that her social life had suffered greatly in view of her pain. Although the Plaintiff’s Facebook profile had not been discussed during the examination for discovery, the defence lawyer had accessed photographs published on the Facebook site of a cousin of the Plaintiff. The photographs showed a person having a lot of fun and who did not appear to be suffering or to be limited in her activities, thus contradicting her claims.

The judge admitted the photographs from the Facebook profile of the third party into evidence. Without the admissibility as evidence of these photographs found on the Facebook site, there would not have been any evidence contradicting the allegations and testimony of the Plaintiff concerning her loss of enjoyment of life. Thus, the impact of the admissibility of the Facebook items was important.

Another key decision was also rendered by the Superior Court of Justice of Ontario in 2007 in the case ofMurphy v. Perger⁵. This judgment was the first to rule on the admissibility as evidence of photographs found in the private section of a Facebook user’ profile. In this case, the Plaintiff was claiming damages for bodily injuries suffered in an automobile accident, in particular for the suffering and loss of enjoyment of life. In support of her claim, the Plaintiff had filed travel and sports activity photographs taken before the accident in the Court’s file. However, before the trial, the Defendant learned that the Plaintiff had published photographs on her private Facebook profile, which was limited to 366 “friends.”

The Court was of the opinion that the admission of the Plaintiff’s Facebook profile as evidence was possible and that it was not a fishing expedition. Since the photographs were already accessible to 366 persons, the judge was also of the opinion that there was no infringement of the right to privacy and that the Plaintiff could not have significant expectations concerning the protection of her private life.

The admissibility of photographs published on Facebook as evidence has also had rather harmful consequences on the credibility of plaintiffs in other cases.

For example, a Plaintiff⁶ claimed damages for bodily injuries suffered from two car accidents and claimed that he no longer had a social life. However, during cross-examination, the Defendant’s lawyer asked him about pages from his public Facebook profile, which the lawyer had printed. The Court was of the opinion that the Facebook evidence contradicted the Plaintiff’s claims since they revealed that the Plaintiff had a very active social life, that he attended parties and organized them, went to chalets on weekends, drank alcohol and smoked marijuana and seemed to have a number of good friends with whom he communicated and socialized on a regular basis. Following the cross-examination, the Plaintiff even closed his Facebook profile so that there would be no more incriminating items that could be used as evidence.

I may start advising my clients to stay off Facebook altogether until their cases have been dealt with.

Gingrich vs. the Judiciary

With his poll numbers finally starting to tumble, GOP Presidential candidate Newt Gingrich is going full-on demagogue:

Newt Gingrich says as president he would ignore Supreme Court decisions that conflicted with his powers as commander in chief, and he would press for impeaching judges or even abolishing certain courts if he disagreed with their rulings.

“I’m fed up with elitist judges” who seek to impose their “radically un-American” views, Gingrich said Saturday in a conference call with reporters.

In recent weeks, the Republican presidential contender has been telling conservative audiences he is determined to expose the myth of “judicial supremacy” and restrain judges to a more limited role in American government. “The courts have become grotesquely dictatorial and far too powerful,” he said in Thursday’s Iowa debate.

As a historian, Gingrich said he knows President Thomas Jefferson abolished some judgeships, and President Abraham Lincoln made clear he did not accept the Dred Scott decision denying that former slaves could be citizens.

[...]

But the former House speaker demurred when asked whether President Obama could ignore a high court ruling next year if it declared unconstitutional the new healthcare law and its mandate that all Americans have health insurance by 2014. Gingrich said presidents can ignore court rulings only in “extraordinary” situations.

An “extraordinary” situation, I presume, would be one in which the courts don’t rule the way Mr. Gingrich wants them to.

Lawyer and libertarian blogger Doug Mataconis lets him have it:

Gingrich’s suggestion yesterday that he would feel free to ignore Supreme Court decisions that he disagrees with is particularly dangerous. When I wrote about this on Friday, I noted the examples from history that Gingrich typically cites when he talks about this issue. Each one of them, from Jackson ignoring the Court’s rulings on Indian removal, to Lincoln ignoring the court rulings on his blatantly unconstitutional suspension of the Writ Of Habeus Corpus, to FDR’s effort to strong-arm the Supreme Court with his court packing plan, involved instances where the Executive Branch was seeking to expand its own power by ignoring the rulings of a co-equal branch of the Federal Government. If Newt Gingrich thinks its okay for him to ignore a Supreme Court decision on same-sex marriage, then that also means that it would be okay for Barack Obama  to ignore the Supreme Court if it declares the PPACA unconstitutional next June. If Arizona can ignore the Supreme Court saying that its immigration law its unconstitutional, then California can ignore the Supreme Court saying that its decision not to enforce immigration laws.

Moreover, as a supposed historian, one would think that Gingrich would recognize the historical roots of his argument. It’s not unlike the doctrine of nullification that was widely popular in the Southern United States before the Civil War, and reasserted itself some 100 years later. After the Supreme Court issued its ruling in Brown v. Board of Education, most of the states in the Southern United States undertook efforts to evade having to comply with the ruling or ignore it all together. Prince Edward County, Virginia, for example, took the extreme step of closing all of its public schools rather than comply with court-ordered desegregation. In doing so, the country provided “tuition grants” to all students regardless of race, but none of the private schools in the county would admit African-American students. In 1964, the Supreme Courtdeclared this policy unconstitutional. Other southern states asserted the discredited theory of interposition to argue that they had the authority to ignore the Court’s ruling in Brown, an argument which the Supreme Court rejected unanimously. In essence then, Newt Gingrich takes the same position on SCOTUS rulings he dislikes that southern segregationists did after Brown. They are as discredited now as they were then.

What’s most striking about Gingrich’s position on this issue, though, is the violence it does to the principle of Separation of Powers. Under our Constitution, the Executive. Legislative, and Judicial Branches are deemed co-equal within their own spheres of power. Gingrich, however, proposes ideas that would completely upend this system by drastically reducing judicial independence. Requiring Federal Judges to appear before Congress every time they issue a decision that some Committee Chairman decides they don’t would be an utter disaster. For one thing, it’s entirely likely that this Congressional power would quickly become subject to abuse as Congressmen and Senators use such hearings not only for political grandstanding but also to put pressure on judges to rule in a certain way in pending cases. Judges would quickly be faced with the dilemma of following the law as best they could and worrying about whether the ruling they issue means they end up on C-Span in three months time getting grilled by a Senator with dreams of running for President one day. It would be the death of judicial independence, and would be harm the rights of those seeking their day in Court who would find that there is an 800lb gorilla called the United States Congress looking over the Judge’s shoulder.

Another thought occurs, of course. If Gingrich believes that it would be proper for Congress to summon a Supreme Court Justice before it to explain themselves, then why wouldn’t it also be proper to summon the President himself before Congress to be questioned and forced to explain the basis for his decisions? What Gingrich is really talking about here is an idea that would set off a Constitutional crisis between the three branches of government.

You’d think a “small government” politician would support a strong and independent judiciary, wouldn’t you?

Update: when you’ve gone too far for Ann Coulter…

Update II: Harry’s Place compares Gingrich’s attitude toward the judiciary with that of Hugo Chavez.  That’s gotta hurt.