Pistorius was not mentally ill and could appreciate the wrongfulness of his act

June 30, 2014

Monday, June 30, 2014

Good morning:

CNN is reporting:

According to the findings by an independent panel of doctors, Pistorius did not suffer from a mental defect or mental illness at the “time of the commission of the offense that would have rendered him criminally not responsible of the offenses charged.”

The report added that “Mr. Pistorius was capable of appreciating the wrongfulness of his act.”

In other words, Pistorius does not have a mental illness defense and the trial can proceed.

Game within the Game:

Mental disorder defenses should be raised before trial. Since the defense did not do that, we can reasonably assume that they they thought that they had a much better chance of winning, if they went with the intruder defense. Unfortunately for the defense, however, Nel eviscerated that claim leaving them up the proverbial creek without a paddle.

Defense counsel’s last minute decision to raise the mental heath issue appeared to have been a desperate move to counter the damage that Nel inflicted. It had little chance to succeed. Instead, the defense appears disorganized and desperate.

Now we have to wait and see how the public perceives the decisions by the defense.

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Wafer: Court denies defense motion to present McBride’s text messages

June 28, 2014

Saturday, June 28, 2013

Good morning:

Wayne County Circuit Judge Dana Hathaway yesterday denied the defense motion seeking the court’s permission to inform the jury about the content of the text messages on Renisha McBride’s cell phone. She denied the motion because their content does not show that she was an aggressive person.

I agree with her decision.

Judge Hathaway also denied the defense motion to introduce a chart into evidence that contains information about police responses to the Dearborn Heights neighborhood during 2013. The defense wanted to inform the jury about those responses to support its argument that Wafer feared death or serious bodily injury because the neighborhood had become more violent.

Unfortunately for the defense, the reasonable response to increased concern about personal safety would have been to remain behind the locked front door and call 911.

Judge Hathaway is going to permit the defense expert, former medical examiner Dr. Werner Spitz, to present expert opinion evidence regarding the general effect of fear on a decision to fire a weapon.

I respectfully disagree with this decision because the general effect of fear on a decision to shoot a gun is beyond the scope of a forensic pathologist’s expertise. Their area of expertise is determining cause of death, not mental processes.

A psychiatrist would be more qualified to address that issue.

Judge Hathaway is not going to permit the defense expert to express an opinion regarding whether Wafer acted reasonably.

Judge Hathaway has not ruled on the defense motion to introduce the photos stored in McBride’s phone. One photo purportedly shows a handgun of some sort. I said before the hearing, the photos should be excluded because they do not indicate that McBride was an aggressive person with a violent disposition.

As the NRA reminds us multiple times every week, possession of a gun does not mean that the person who possesses the gun has a violent disposition.

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Get thee to a revenue stream and grow rich without doing anything

June 27, 2014

Friday, June 27. 2014

Good morning:

With increasingly rare exceptions, modern capitalism is not about building a better mousetrap and selling it for a cheaper price than your competitors. It’s about positioning your business in a revenue stream, charging as much as the market will bear, and systematically eliminating your competitors.

To understand the concept of a revenue stream, think of a vast ocean, such as the Atlantic, and replace the water with money that behaves like water.

Oceans have currents. For example, most people are familiar with the the Gulf Stream that flows north along the east coast of the United States.

Revenue streams are currents composed of money. For example, the United States Government has created a vast revenue stream to conduct the business of war. Other revenue streams created by our government are collecting intelligence and homeland security.

Many corporations have positioned themselves in one or more of those revenue streams by hiring people who have expertise in those areas and using their influence to be awarded no bid, cost plus contracts to carry-out a desired activity.

Aereo, which the SCOTUS smacked down on Wednesday, was a business that inserted itself in the cable TV revenue stream by recording free television broadcasts in a digital format and storing them in a cloud that customers could download and watch over the internet for a fraction of the cost that cable customers pay.

NYET! declared the SCOTUS deeming the interception a copyright infringement, thereby preserving the revenue stream for cable TV.

Moral of the story: Pay to Play and don’t mess with the big boys.

Aereo’s idea is a good one, but they are going to have to pay fees to the broadcasters to capture their broadcasts and make them available over the internet.

Yes, internet users are a revenue stream.

We need to abolish the use of peremptory challenges in jury trials

June 26, 2014

Thursday, June 26, 2014

Good morning:

The SCOTUS prohibited the use of peremptory challenges, for which no reason must be given, to systematically exclude blacks from juries in criminal trials of black defendants in Batson v. Kentucky.

Batson permits the use of peremptory challenges to exclude blacks from juries so long as the party challenging the juror has a race neutral reason for asserting the challenge.

The Batson rule applies to all cases, whether criminal or civil, and it has been extended to prohibit the use of peremptory challenges to systematically exclude jurors based on gender or religious affiliation.

Unfortunately, a smart lawyer usually can come up with a race neutral “reason” to exclude a black juror, however unlikely, to pass judicial scrutiny.

The reverse side of that racial injustice is the acquittal by all white juries of guilty white defendants who murdered black victims.

We saw that in the Zimmerman trial.

Justice Thurgood Marshall realized games were being played in the aftermath of Batson. He wanted to solve the problem by getting rid of peremptory challenges.

Until recently I disagreed.

I quit practicing law ten years ago and it has taken me this long to finally change my mind and acknowledge that Justice Marshall was right.

We should not be excluding anyone from serving on a jury without a valid reason. By eliminating peremptory challenges, we would be requiring lawyers to present a convincing case for disqualifying a juror, convincing in the sense that opposing counsel would have an opportunity to rehabilitate a challenged juror.

This is how courts handle challenges for cause. Unless unopposed, each challenge for cause becomes a mini trial decided by the judge after each side gets an opportunity to question the challenged juror.

By forcing lawyers to support a challenge with an evidence based reason, instead of a hunch or a prejudice, we would do no more than subject them to the same standard to which we routinely hold police officers when they arrest a suspect. Such a rule would only improve our system of justice.

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Thank you,


Theodore Wafer pretrial motions hearing continues tomorrow

June 25, 2014

Wednesday, June 25, 2014

Good evening:

Many thanks to all for your birthday wishes.

Here’s hoping all of our lives improve and we start to see some justice coming out of our courts.

The pretrial motions hearing continues tomorrow in the Theodore Wafer case. The judge will be taking up the defense motions to slime Renisha McBride and introduce evidence about the alleged changing character of the neighborhood.

I have written recently about these motions and the Wafer case in general in the following articles:

Theodore Wafer did not fear death or serious injury when he killed Renisha McBride

Defense seeks permission to slime dead victim in Theodore Wafer case

The evidence the defense seeks to introduce is not admissible. Let’s see if the judge agrees with me.

I hope the hearing will be televised and live streamed, but it wasn’t last week.

I believe it will start at 9 am EDT.

Unfortunately, Crane and I have doctor’s appointments that will cause us to miss the hearing. After we return home and figure out what happened, I will put up a post discussing it.

Don’t forget that Oscar Pistorius will be back in court in Pretoria, South Africa on Monday morning, June 30th.

Pretoria is 6 hours ahead of New York, so the hearing will start at 3:30 am EDT, assuming a 9:30 am start in Pretoria.

I will put up a post this weekend updating everyone.

Until tomorrow then.


Ebola Virus Disease a Crisis in West Africa

June 25, 2014

by Crane-Station

According to a report published in Business Insider on Monday titled, “Current Ebola Outbreak Is Now The Worst In History And ‘Totally Out Of Control’,” Doctors Without Borders’s Bart Janssens told the Associated Press that the current epidemic in Guinea is “now in a second wave” and that it is “totally out of control.” The World Health Organization (WHO) held a meeting on Monday, and posted information on the WHO website:

Ebola virus disease, West Africa – update

Disease Outbreak News
22 June 2014


Between 16 and 18 June 2014, a total of 3 new cases and 3 deaths were reported from Gueckedou (3 cases and 0 death), Telimele (0 case and 2 deaths), and Boffa (0 cases and 1 death). This brings the cumulative number of cases and deaths reported from Guinea to 390 (258 confirmed, 88 probable, and 44 suspected) and 267 deaths.

The Center for Disease Control and Prevention (CDC):


-June 16, 2014, the Guinea Ministry of Health announced a total of 398 suspect and confirmed cases of Ebola hemorrhagic fever (EHF), including 264 fatal cases.

-Affected districts include Conakry, Guéckédou, Macenta, Kissidougou, Dabola, Djingaraye, Télimélé, Boffa, Dubreka, and Kouroussa (see map).
254 cases across Guinea have been confirmed by laboratory testing to be positive for Ebola virus infection.

-In Guinea’s capital city, Conakry, 68 suspect cases have been reported to meet the clinical definition for EHF, including 33 fatal cases.
June 17, 2014, the Ministry of Health and Sanitation of Sierra Leone reported a cumulative total of 97 clinical cases of EHF (including 92 laboratory confirmations) and 49 fatal cases according to WHO.

-June 16, 2014, the Ministry of Health and Social Welfare of Liberia reported a cumulative total of 33 suspect and confirmed EHF cases, including 24 reported fatalities and 18 laboratory confirmations.

-Genetic analysis of the virus indicates that it is closely related (97% identical) to variants of Ebola virus (species Zaire ebolavirus) identified earlier in the Democratic Republic of the Congo and Gabon (Baize et al. 2014External Web Site Icon).

-The Guinean Ministry of Health, the Ministry of Health and Sanitation of Sierra Leone, and the Ministry of Health and Social Welfare of Liberia are working with national and international partners to investigate and respond to the outbreak.

Ebola virus disease (EVD) or Ebola hemorrhagic fever (EHF) is a virus that has no known cure, but education remains important, as does the provision of care to patients that do become infected. Also, standard precautions are critical and require supplies. For the health care workers in the field to ensure their own protection, increased precautions and equipment are also necessary. In addition, there are only a few laboratories in the world that are equipped to handle and perform research on Ebola.

The virus was first reported in the Congo in 1976, and is considered to have come from fruit bats initially. Ebola is associated with very high death rate (up to 90 percent). Ebola Virus is named after the Ebola River, where the first outbreak occurred in the Congo.

Photographs on flickr, creative commons:

Ebola in West Africa by European Commission

Ebola in Guinea, a Doctors Without Borders worker in protective clothing, by European Commission.

Guardian on Monday:

global development
West Africa Ebola epidemic is ‘out of control’
MSF warns that doctors are struggling to contain second wave of disease in region amid poor monitoring and communication
• Tackling the Ebola epidemic in west Africa: immediate medical action is not enough


Last Wednesday, two of the three Decorah Eagles, D-18 and D-19 fledged, and the third, D-20, fledged on June 20.

Unfortunately, a short time later, two of the juveniles, in separate incidents were found down. D-20, the youngest, was weak and hungry. RRP believes it is a female. They fed her, re-released her, and the eagle father then located her. The second eagle was found in a creek, and the vet determined by x-ray and exam, that there is a humerus fracture on the wing. The Decorah Eagle Juvenile is at Save Our Avian Resources (SOAR), a rescue in Iowa, where surgery is planned to pin the fracture.

~Update on the Decorah Juvenile Eagle: June 23, 2014~

From Kay Neumann, Executive Director, SOAR

“X-ray shows oblique humerus fracture about an inch from the shoulder joint. Dr. Dirks will do surgery on Wednesday to pin. Will get plenty of food and fluids in him/her between now and surgery”

[The humerus is the large bone between the coracoid (shoulder) and the radius and ulna (elbow)]

There are two sites to visit for updates on the Decorah Eagles:

Decorah Eagles on Facebook

SOAR on Facebook

Open Thread Birthday

June 24, 2014

Tuesday, June 24, 2014

Good morning:

I was born 67 years ago today in Karachi during Partition. My father was a Foreign Service Officer working for the State Department.

I’ve lived in Cuba, Nicaragua, Ecuador and the United States.

I am bilingual.

I am posting an open thread today and please wish our good friend Colin Black a happy birthday.


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