OJ should not be in jail…for that

OJ Simpson should not be in jail for his 2008 crimes. In 1994 he was acquitted of the murders of Nicole Simpson and Ron Goldman. In 2008 he was convicted of burglary, kidnapping, conspiracy and possession of a deadly weapon. OJ claimed he had sports memorabilia and other things stolen, including family photos, and he held the thieves hostage in a Las Vegas hotel. He was sentenced 33 years in a Nevada prison.

Contrast that with his accomplice, Clarence “CJ” Stewart, who was with OJ through it all. His conviction of 27 years was reversed. How do you keep one person in jail and let the other walk free for the same charges?

OJ did not receive the 33-year sentence for this alleged robbery. He received it as punishment for getting away with murder. Based on double jeopardy, the decision in this robbery case should not be judged by his criminal history.

The Double Jeopardy Clause of the Fifth Amendment to the United States Constitution states:

“Nor shall any person be subject for the same offense to be twice put in jeopardy of life or limb…”

This includes protection against retrial after acquittal or conviction. The court must also consider collateral estoppel, which says once the court has decided an issue of fact or law necessary to its judgment, that decision precludes relitigation of the issue. The rationale is that it will prevent legal harassment and abuse of judicial resources.

A criminal jury decided OJ did not kill two people. A civil court ruled he did, and he received $33 million in punitive and compensatory damages, which he cannot be forced to pay. It’s the law. No one ever said it made sense. Because humans made the law there will always be flaws, and our criminal justice system is wrought with injustices.

If we’re going by the book, OJ should walk free tomorrow. I think Judge Glass had his mind made up going into the courtroom in 2008. His decision was biased and unconstitutional. Perhaps this is one of those rare cases where a subjective opinion is justified. Sometimes you have to say, “Screw the book, lock up the Juice!” I have faith that our judges, police officers and other civic leaders generally have our best interest in mind.

OJ should not be in jail for burglary, conspiracy or kidnapping. He should be in jail for the brutal murders of Nicole Simpson and Ron Goldman.

The Evolution of First Amendment Tests

“Clear and present danger” – the ambiguous test adopted in landmark case Schenck v. Unites States by Justice Holmes. It determines under which circumstances First Amendment limits apply.

The country was deeply divided in 1919 when the U.S. entered into the Great War. The war, opposed by radical leftists and German sympathizers, was a time when the First Amendment was brought into question.

In Schenck, the Court chose not to protect the First Amendment rights of men who distributed anti-draft leaflets to young men, promoting resistance to the war. Based on the idea that their actions could impede the war effort, the Court upheld the conviction calling it a clear and present danger.

This clear and present danger test adopted in Schenck meant Congress had a right to prevent speech used in circumstances, such as wartime, that create a clear and present danger to bring about basic evils. However, weeks later in a similar case, Justice Holmes dissented in Abrams v. U.S. on the means that the defendants didn’t have the necessary means and specific intent to “cripple the U.S. in the prosecution of the war.”

Six years later, in Gitlow v. New York, the Court upheld conviction based on the rationale of the bad tendency test, saying a state may forbid speech or publication if it might result in dangerous action even if the danger isn’t clear or present. The majority stated:

“A state in the exercise of its police power may punish those who abuse this freedom by utterances inimical to the public welfare, tending to corrupt public morals, incite to crime or disturb the public peace.”

Dissenters believed the criteria established in Schenk should apply to the case, meaning the clear and present danger test should be used rather than the bad tendency test. Holmes argued that the writings present no danger to violently overthrow the government.

Brandeis and Holmes in 1927 promoted the clear and present danger test in Whitney v. California, but encouraged even more freedoms this time. They adjusted the language from “present danger” to “imminent danger” to support greater protections for speech.
The clear and present danger test was adopted and used by the majority in 1940, but rejected in 1950 in Dennis v. U.S. when they adopted the “balancing test.” This variation of clear and present danger meant that in each case, the Court could decipher whether the “gravity of evil, discounted by its improbability, justified such invasion of speech as is necessary to avoid danger.” This led the court to consider many different factors in each case, deciding whether it is appropriate to take privileges when compared to the likelihood of success. This balancing test was used for two decades.

Today, the courts use a variation of the clear and present danger test that is narrower, with less freedom for the courts to interpret, as is their preference. The courts do not like ambiguity, and have applied a standard established in Brandenburg, which holds, “The constitutional guarantees of free speech and free press do not permit a State to forbid or proscribe advocacy of the use of force or of law violation except where such advocacy is directed to inciting or producing imminent lawless action.”

SOURCES: Wikipedia: “Clear and Present Danger,” “Schenck v. U.S.,” “Abrams v. U.S.”

Austrian For a Summer

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Living in Austria has shaped my view of my country, my faith and my world outlook. On the first day in Vienna, I was asking for wifi passwords, looking for air conditioning and thinking about what I wanted to do in the States. By the time I left Vienna, I thought about the books I wanted to buy, the languages I wanted to study and new lifelong friends I just made.

I experienced a few recognizable turning points during my European stay. One was at Mauthausen concentration camp. I walked through the grounds where 81,000 prisoners lost their lives. I felt a heavy weight standing there, knowing afterwards, I would leave on a charter bus and go get gelato.

IMG_7743.JPGMauthausen concentration camp, liberated by the U.S. Army in May 1945

Anger and sadness grew in me as I learned more about the horrific, inhumane events that went on during World War II, knowing that this was less than 80 years ago. I pictured my brother if he had been born at that time, willingly laying his life on the line to liberate these prisoners who were children of God. Knowing America had a large hand in the defeat made me more proud of my country and even more in awe of those who have served it.

IMG_7858.JPGMauthausen was liberated by the U.S. Army 65th Infantry Division.

Another turning point was at the Roman Forum. As we walked to the chamber where Paul was imprisoned, someone read from Acts 16 where Paul and Silas were stripped and beaten with rods. After being severely flogged, they were thrown in the prison next to the Arch of Septimius Severus that I stood in front of. I have heard these stories since I was a toddler, but seeing the ruins, relics and excavations gave it a whole new meaning. Sometimes I read the Bible and feel very removed from something that happened so long ago and so far away. Seeing these sites firsthand has served as a much-needed reminder that everything in the Bible is historically accurate. It has strengthened my faith and made me want to read these stories from this new perspective.

FullSizeRender.jpgRoman Forum, Paul’s prison is behind the Arch of Septimius Severus on the right. 

My outlook on life shifted on this trip. Most of the things I worry about don’t matter, and most stressful situations have good lessons to reap. When we missed the only train back to Vienna from Croatia from our station, we had the opportunity to solve a complex foreign puzzle. With no time to waste, instead of getting angry and stressed, we calmly took logical steps to get to our destination and made it back to Vienna only five hours later than originally planned. We stayed optimistic and even met some fascinating people along the way.

On a more serious note, I was sad to come to the realization that America isn’t what it used to be. If I were to generalize my generation, I would say most are spoiled, entitled, intelligent and apathetic. I can’t imagine what a modern day draft would look like. During World War II, men who weren’t even selected to serve left the comfort of their homes to fight for their women, children and future Americans. They were guided by something that must be done, ready to give their lives. I think of Desmond Doss when he said, “I can’t stay here while all the other people are fighting for me.” I sincerely hope my generation would have the same response.

Today, many clueless millennials openly flirt with the idea of a Trump assassination, complain about the “rights” they are entitled to and always ask “what’s in it for me?” It is a very different America. Today, a man is praised for sitting during the national anthem, yet cursed for standing to better the lives of veterans.

I am a different person because of this experience. I will always be more aware of my surroundings, more appreciative of people’s differences, more confident in my ability to overcome obstacles, more grateful for my country and more likely to thank a veteran. This experience has given me something no classroom could ever teach and no words could ever fully capture. My only regret is not staying longer.IMG_1215.JPGThe Roman Colosseum, in the words of Maximus: “ARE YOU NOT ENTERTAINED?”