Hello:

And, guess who didn't?

The IDEA of empathy being part of the law is not NEW. It's alive and well, and is embodied in the concept of "equity" and "jury nullification". So, it was refreshing to see that empathy is NOT dead on the Supreme Court, either.

The idea in practice, allows leeway in applying the rule of the law. It's often unappreciated by judges and a few of our members. They insist the law means only what it says, and nothing else.

That originalist viewpoint was evident in 2008 when a federal appeals court refused to allow a lower court to consider a death-penalty conviction because the defendants lawyer had, inexcusably let the filing deadline pass. Fortunately, seven members of the Supreme Court proved less rigid in their thinking on Monday and reversed that blinkered decision.

Which righty's have the dreaded empathy?? Roberts and Alito. Who still wears blinders? Scalia and Thomas.

Things are looking up.

excon

But it can work the other way, remember Minority Report.
Being tried for crimes you are GOING to commit!!

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Originally Posted by Curlyben

But it can work the other way, remember Minority Report.
Being tried for crimes you are GOING to commit !!!

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Hello ben:

You say CAN, as though it's NOT already being done. Hopefully, across the pond, it's still a fantasy. HERE, however, it already DOES work the other way around. After some sex offenders have served their criminal sentences, we KEEP them locked up because of what they MIGHT do.

I wonder what Roberts and Alito would think about THAT illegal detention? Nahhh. I don't.

excon

In the UK they have started making wider use of sentences of that type, known as indeterminate with a minimum term to server. Not quite Life, but as near as darn it.

I must admit if it is shown that an criminal is likely re-offend then they should be kept incarcerated until they can satisfy the board they are no threat to the public. In the case of violent crimes it makes a lot of sense.

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Originally Posted by Curlyben

In the UK they have started making wider use of sentences of that type, known as indeterminate with a minimum term to server.

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Hello again, ben:

We have indeterminate sentences... That's not what I'm talking about. I'm talking about at the END of whatever criminal sentence was imposed, and the inmate is about to get out, THAT'S when the state "civilly" commits him to an indeterminate sentence.

I'm all for keeping violent predators behind bars. If they need to keep an offender a LONG time, then sentence him to a LONG time. It ain't right to do it on the back end.

excon

It's not a matter of empathy . It's understanding intent of the statute. This is a procedural exception that is warranted because of attorney misconduct .

The decision has nothing to do with the guilt or innocence of Holland ;and nothing at all to do with "empathy " the way Sonya Sotomayor or the President used it.

The case will go back to the lower court where justice will be served .

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Originally Posted by tomder55

It's not a matter of empathy .

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Hello tom:

No? The law is clear on the matter. The DEADLINES signify the INTENT of the law. Plus, if it's NOT a matter of empathy, how do you explain TWO of the four originalists ruling in opposition to each other?

excon

I have not read the dissent yet. Roberts in questioning straddled the fence between "equitable tolling", and a need for a “constraining principle” so as not to “do away with” the statute of limitations entirely.

This will not change the outcome of the case . It is just that he will get a fair hearing despite his pro-bono lawyer's gross incompetent negligence.His lawyer was so bad that Holland tried to get rid of him.

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In 1996, petitioner Albert Holland was convicted of murder and sentenced to death in a Florida state court. His direct appeals were unsuccessful: the Supreme Court denied certiorari, thereby triggering the start of Section 2244(d)’s one-year limitations period, on October 1, 2001. Approximately one month later, Bradley Collins was appointed to represent Holland in his post-conviction proceedings. Collins filed a motion for post-conviction relief in state court in September 2002, thereby tolling the limitations period and leaving Holland with approximately two weeks to file his federal habeas petition if his motion for state post-conviction relief was denied. The Florida Supreme Court did deny relief, and issued its mandate affirming the denial on December 1, 2005 – at which point the limitations period continued to run.

Although Holland had repeatedly written to Collins asking about the state court proceedings and the AEDPA limitations period, and had instructed him to file his federal petition before the limitation period expired, Collins nonetheless failed to file a timely federal habeas petition and failed to even tell Holland that the Florida Supreme Court had released its decision affirming the denial of Holland’s motion. In January 2006, after the one-year limitations period had expired, Holland eventually learned that the Florida Supreme Court had denied post-conviction relief. One day later, he filed a pro se federal habeas petition.

The district court dismissed Holland’s federal habeas petition as untimely, holding that Holland was not entitled to equitable tolling because he had not been diligent in pursuing his rights.

... Holland accepts that equitable tolling is not available for “garden variety” attorney negligence but argues it should be available where a litigant can show “(1) that he has been pursuing his rights diligently, and (2) that some extraordinary circumstance stood in his way.” (Citing Pace v DiGuglielmo, 544 US 408 (2005)). He argues that gross negligence by collateral counsel can qualify as extraordinary circumstances warranting equitable tolling. [/B]

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Holland v. Florida - ScotusWiki

The court agreed . This has nothing to do with originalism. It is rigidity in the face of a horrible negligence of duty by his attorney.

Now that being said . When all the procedural crappola is over .I will be happy to see the skunk fry. Hopefully that will be accomplished before he dies of old age. This is already 14 years since the crime.

Thelma Johnson reported that Albert Holland approached her and asked her if she had a hitter (a device used to smoke cocaine). Johnson stated that she did not, but led Holland to a wooded area with the intention of smoking cocaine together.
After smoking the second half of the cocaine rock, Holland became violent. He shoved Johnson to the ground, held her down and hit her on the side of the head with a bottle while she begged him not to kill her. As Holland beat her, he repeatedly threatened to kill her.

Holland ripped Johnson’s shirt and unzipped her pants and forced Johnson to give him oral sex. When Johnson protested and stopped, Holland beat her until she was unconscious. Holland stopped beating Johnson and left the scene when a witness yelled for Holland to stop before he killed her. Johnson had a severed ear, a fractured skull, and multiple cuts on her face, which required extensive plastic surgery.

Police officers responded to a call regarding the attack and began the search for Holland. Officer Scott Winters was in his patrol car when he asked Holland to approach the vehicle. A struggle ensued and Holland managed to take Winters’ gun and shot the officer twice before he fled the scene.

Police officers stated that Winters requested backup at 7:25 p.m. and reported being shot at 7:26 p.m. When officers arrived at the scene, Winters’ gun was missing. Winters died at 8:30 p.m. as a result of gunshot wounds to the lower stomach and groin area.
Albert Holland - Florida Death Row Inmate Albert Holland

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Originally Posted by tomder55

This has nothing to do with originalism. It is rigidity in the face of a horrible negligence of duty by his attorney.

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Hello again, tom:

I agree. You said it exactly right. The TWO originalist's ignored his plight, and ruled on the law as it was written, rigid though it was. Everybody else, RECOGNIZED the horrible negligence you mentioned, and saw the injustice that "rigidity" toward the law would have inflicted, so they ruled CONTRARY to the law as it was written, because of it. That, my right winged friend, is the quintessential definition of empathy.

But, I suggest empathy goes both ways as you so amply demonstrate time and time again. You are empathetic yourself - empathetic to the opposite viewpoint as myself, to be sure, but you ARE empathetic...

To wit: When I suggest that a Constitutional violation has occurred, I DON'T list how wonderful the person is as one of the reasons. I look to the law. You, on the other hand, always make sure to tell us how BAD the person is, I guess, as a precursor to telling us its really OK to violate THIS persons rights, because he's really, really, bad.

You could use a dose of originalism yourself.

excon

My "empathy in this case if there is any is in the fact that the accused should not be the victim of a grossly incompetent lawyer who had no interest in professionally representing his client .Yes I dislike them almost as much. The decision won't change the fact that Holland will be executed . But he should be allowed to explore all legal challenges available to him .

You don't think the actions of the accused important or relevant ?

Am I to conclude by what you wrote that we agree that scum should not be let off because of a rigid application of a technicality also ? Yeah I thought so.

I would be inconsistent if I complained about one and didn't think it applied to another . Reverse this case, and apply it instead to someone getting off because of a rigid application of Miranda and you know where I am coming from .

I will reserve final opinion on this decision until I read the dissent , But so far I think Scalia blew it. It isn't the 1st time I've disagreed with Scalia either .

Originalism is about intent of the founders ;not about a rigid application of the law. As we both know ,the law on occasion has been crafted contrary to the original intent of the founders . So a rigid application to a flawed law or procedure would not be originalism at all.

I think we both know what the President and Justice Sotomayor means by empathy . In fact I know what he meant because he was very clear about it .

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I will seek someone who understands that justice isn't about some abstract legal theory or footnote in a casebook; it is also about how our laws affect the daily realities of people's lives, whether they can make a living and care for their families, whether they feel safe in their homes and welcome in their own nation. I view that quality of empathy, of understanding and identifying with people's hopes and struggles, as an essential ingredient for arriving at just decisions and outcomes.”

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POTUS Interrupts Press Briefing to Announce Souter's Retirement, Announce Qualifications for Next Supreme - Political Punch

Under those terms you would think his empathy would lie with Thelma Johnson who was brutalized by the thug Holland .Or perhaps it would lie with the family of the slain officer Scott Winters .

But we know better . His empathy lies with the likes of Michael Ross, the “Roadside Strangler,” who in January 2005 was slated to be the first person executed in Connecticut in more than four decades. His empathy lies with the serial rapists .
How do I know this ? Because Obama selected a like minded judge ,Robert N. Chatigny to be elevated to the United States Court of Appeals for the 2nd Circuit. Chatigny presided over the Ross case and has a history of leniency for sex offenders . Chatigny empathetically described Ross as a victim of his own "sexual sadism."

Yeah I know where the President's empathy lies..

Ps . You probably have not heard of Robert N. Chatigny because the press has pretty much glossed over the controversy surrounding his nomination.

Looks like our federal government has gotten all kinds of empathy. First, they've established a hotline to help people who can't legally earn a wage, with wage issues - in direct contravention of a SCOTUS ruling.

Second, our Federal government is now boycotting a state over immigration issues - when they are at fault for the problem. Un-be-lievable.

Some more boot on the neck persuasion ?
I think Arizona should counter sue if the Fed Gvt decides to go ahead with their lawsuit. Cause... failure to enforce Federal laws. I wonder what would happen if the State decided to 'boycott' all Federal mandates ?

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Originally Posted by tomder55

I wonder what would happen if the State decided to 'boycott' all Federal mandates ?

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I predict "boots on the throat" of Arizona while Zero searches for whose a$$ to kick.

On another note, the European Court of Human Rights is apparently a little mixed on empathy.

Court: same-sex marriage is not universal right

Hello again, Steve:

So, we SHOULD pay attention to European law? Dude! I can't keep up with you guys.

excon

I offered no opinion, I posted it for the surprise factor.

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Originally Posted by speechlesstx

I offered no opinion, I posted it for the surprise factor.

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Hello again, Steve:

Who's surprised? Maybe the Mormon church got involved in anti-gay stuff there like they did in California.

But, I want to talk more about empathy. Is it empathy when a cop doesn't stop you for going 5 miles per hour over the limit? It it empathy when a cop confiscates somebody's marijuana instead of busting him for it?

If it's empathy, rather than adhering to the rule of law, is it good? SHOULD cops on the street HAVE the authority to make those decisions? If they SHOULD, why shouldn't the Supreme Court have the same authority?

excon

Quote:

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Originally Posted by excon

Hello again, Steve:

Who's surprised? Maybe the Mormon church got involved in anti-gay stuff there like they did in California.

But, I wanna talk more about empathy. Is it empathy when a cop doesn't stop you for going 5 miles per hour over the limit? It it empathy when a cop confiscates somebody's marijuana instead of busting him for it?

If it's empathy, rather than adhering to the rule of law, is it good? SHOULD cops on the street HAVE the authority to make those decisions?? If they SHOULD, why shouldn't the Supreme Court have the same authority?

excon

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Most likely the cop is acting on dept. guidelines . They don't always want to get bogged down with the administrative time it takes to process what they consider minor violations.
When it's time to beef up the town coffers however their "empathy " modifies in a hurry.

I'd say that SCOTUS is dealing with much bigger issues than minor traffic violations.

Hello again, tom:

Couple things. Somebody in the town decided that some "minor" crimes won't be prosecuted. The question is, did they do because they have empathy. Certainly, they're not calling balls and strikes. They don't have the authority to do that. The legislature makes law, and the executive carries it out. They don't have choices, according to a "strict interpretation" of the law, which is what you guys want supreme court to do.

It has nothing to do with MINOR or MAJOR. It has to do with what one considers are the limits of his authority.

excon

I just want to say that "originalism" and "strict interpretation" are not the same concepts ,especially they way you interpret them . I think the courts should filter their interpretation of the laws by the concept of originalism .
Strict interpretion as I understand the way you see it is enforcement to the letter of the law.I do not subscribe to that at all.