Category Archives: Fifth Amendment

While the details of the WTO patent waiver have not been determined (or more properly negotiated), it is important to consider the structure of the international trade regime in which the waiver will operate and the consequences of any agreement defining exactly what will be waived.

The GATT/TRIPS agreement is a treaty, which (of course) is an agreement between countries, and disputes and accommodations are between their governments. The extent to which a private company's patent or other IP rights are protected under the terms of these agreements depends on actions of these governments in enforcing them on the company's behalf. Thus, for protections like patents, a government can agree to "turn a blind eye" to infringement by companies in other countries (or other governments) by refusing to press the rightsholder's case before the WTO, to pressure the governments unilaterally (as in the Watch List and Special Watch List of the U.S. Trade Representative's Special 301 Report), or otherwise support a private company's private actions using an infringing country's legal system. Such "passive" actions (i.e., refusing to enforce rights in violating or "scofflaw" countries) requires very little affirmative action by a government. These are the types of de facto waivers that can be effective, for example, for patented drugs that can be produced by conventional drug production technology wherein description of an active pharmaceutical ingredient molecule.

The details of COVID vaccine production have been set out in various new sources (see Neuberg et al., "Exploring the Supply Chain of the Pfizer/BioNTech and Moderna COVID-19 Vaccines"; Weiss et al., "A COVID-19 Vaccine Life Cycle: From DNA to Doses," USA Today, Feb. 7, 2021; King, "Why Manufacturing Covid Vaccine to at Scale Is Hard," Chemistry World, Mar. 23, 2021; Cott et al., "How Pfizer Makes Its Covid-19 Vaccine," New York Times, April 28, 2021). But these are certainly not disclosed in the detail necessary for commercial production, and the complexities of production are illustrated in graphics from the Times article, wherein the DNA is prepared in Chesterfield, MO and shipped to Andover, MA for mRNA production; then the mRNA shipped back to Chesterfield or Kalamazoo, MI for packaging into the vaccine nanoparticles; and then sent back to Andover for testing before release. While some of this complexity may be company-specific, it also represents the different technological requirements for preparing an effective vaccine. It is unlikely that most of the countries in favor of the waiver (except India and South Africa) have the technological infrastructure for producing the vaccine. And the company in India, the Serum Institute ("the largest vaccine maker in the world"), having the greatest likelihood of being able to reproduce the vaccine if the waiver is put in place recently was forced to "hand over its vaccines to the [Indian] government," according to an article in the New York Times (Schmall et al., "India and Its Vaccine Maker Stumble over Their Pandemic Promises," May 9, 2021).

It is evident that, in the almost total absence of patents involved in COVID vaccine preparation, the disclosure needed to reproduce these vaccines (no matter how difficult that may be in practice) are protected by trade secrets. If the WTO imposes this waiver, the question will be whether the U.S. will compel disclosure of trade secret owned by U.S. companies, or have disclosed them to the extent such secrets are part of regulatory filings. Either action would constitute a "taking" under the Fifth Amendment ("Nor shall private property be taken for public use, without just compensation"); see Epstein et al., "The Fifth Amendment Takings Clause," Interactive Constitution: Common Interpretation. Seemingly simple and straightforward, almost every word in the clause is open to interpretation, none perhaps as much as determining what "just compensation" entails. It is likely that, should the government act peremptorily with regard to takings of trade secrets justified by any WTO waiver clause, the effect on trade secrets will carry the greatest consequences and be the cause of most controversy. Indeed, the prospects arising therefrom are likely some of the biggest impediments towards effectuating any waiver in a manner that could have any chance of achieving the stated goal of facilitating COVID vaccine production.

This prospect also raises the issue of how any such waiver will be implemented in the U.S. Treaties are not necessarily "self-executing" and need to become enforceable through an Act of Congress. The distinguishing feature of such treaties are that "provisions in international agreements that would require the United States to exercise authority that the Constitution assigns to Congress exclusively must be deemed non-self-executing, and implementing legislation is required to give such provisions domestic legal effect." See Mulligan, "International Law and Agreements: Their Effect upon U.S. Law," Congressional Research Service 7-5700, Sep. 19, 2018. The necessity for Congress to act, although not having the heavy weight that entails approving treaties (i.e., a two-thirds majority vote in the Senate) nonetheless could be expected to face significant opposition should it be interpreted to permit the government to exercise a form of "eminent domain" over pharmaceutical companies' trade secrets. In this regard such an act could readily be characterized as "forced technology transfer" and even IP theft, should, for example, such trade secrets be capable of use to weaponize rather than immunize against viral infections.

The administration's public position raises the likelihood of an infringement on private property unprecedented in the U.S. It also has implications for other aspects of foreign policy; for example, at least some of the trade secrets belong to BioNTech, a German company. Germany has not agreed to the waiver, and should the U.S disclose BioNTech's trade secrets, no doubt Germany would have cause to seek redress against America. This is but one of the possible legal consequences that the recent capitulation to the purported global "kumbaya" of the WTO waiver is likely to create.

More complications will likely arise as the negotiations proceed. Provided the Administration is properly advised and the waiver properly limited (e.g., to patents) these and other deleterious consequences may be avoided. In view of the possibility of serious liability arising by improvident acquiescence to generally uninformed calls for a broad waiver, it might not be a bad idea for all those involved in innovation (universities, technology transfer offices, pharmaceutical companies, patent lawyers, and economists) counter these opinions with the facts and make their viewpoints known and voices heard.

Read the rest here:
If the Devil of the WTO IP Waiver Is in the Details, What Are the Details? - JD Supra

Yona Owens, 1973

PublishedMay 10, 2021 6:04 PM by Denise Krepp

On Nov. 10, 1976, Petty Officer Yona Owens and six other women sued the Navy. The women were determined to overturn a 30-year-old federal statute that limited Navy women to shore-duty billets, even though they were trained to work aboard ships. Judge John J. Sirica heard the case on April 11, 1978, and July 27, 1978, and he ruled that women should be allowed to serve at sea.

The woman who pushed for the change, Petty Officer Yona Owens, was born into a Navy family. Her grandfather served in the Navy during the Spanish-American War and World War I, and her father served in the Navy - first during World War II, then as a reservist.

I recently spoke with Owens and asked why she decided to sue the Navy. Succinctly, Owens said that she was raised to solve problems. Once a problem is identified then one should work to fix it. Owens recognized that it was unconstitutional, not to mention a waste of taxpayer money, to limit the service of shipboard-trained female Navy Sailors to shore-duty billets.

Suing the Navy was not Owens first brush with challenging policies restrictive to women. After growing up in Charlotte, N.C., where she was a Girl Scout, Owens attended Appalachian State University. It was 1968, and ASU required women to wear skirts, but the winters were cold so Owens wore her dads Navy-surplus bell-bottom uniform pants to classes. Owens was reprimanded, and she transferred to East Carolina University.

Low on funds, Owens eventually left school and followed in her familys footsteps by joining the Navy. She signed her enlistment papers on May 30, 1973, and was sent to Recruit Training Command (RTC) in Orlando, Fla. The boot camp was for men and women, but at the time they didnt train together. They were allowed to enter the chow hall at the same time, but they couldnt sit next to each other.

After graduating from RTC in late July 1973, Owens attended Interior Communications Electrician A School in San Diego, where she was the only woman in her class. The Navy assigned the men in her class to ships but sent Owens to a second school at Great Lakes Naval Training Center. Again, she was the only woman in her class. At graduation, once again, she was the only person not to receive orders to a ship. Owens said in our conversation it was then she realized her assignments were based on gender.

Owens said her male classmates also noticed the Navys differing treatment of women, and some found it unfair towards men. Because men had to go to sea after their first school, many were displeased that women were allowed to gain additional training without serving in the fleet.

Owens was supposed to attend a third school after graduating from the Great Lakes Naval Training Center, but she convinced her detailer to send her to Japan.

Owens was an E-3 when she arrived in Japan and made E-4 with her performance during the next testing cycle. She was determined to gain the knowledge needed to pass the E-5 exam, so she started spending her free time working on Navy ships docked at Yokosuka. These work details were at the invitations of her former classmates when their ships came into port for repairs.

By both studying and obtaining hands-on training during her off-duty time, which included requesting temporary assigned duty (TAD) on two short-term cruises for family members (known then as dependent cruises), Owens said she surprised the higher-ups and passed the E-5 exam. She was the first female 2nd class interior communications electrician (IC) petty officer in the modern Navy.

While in Japan, Owens wrote letters to senior leaders, including the Judge Advocate General and the Master Chief Petty Officer of the Navy, advocating to let women go to sea. Neither supported this change.

So yet again in December 1975, the Navy assigned Owens to shore duty. This time she was assigned to the Command and Control Technical Center (CCTC) in the National Military Command Center for the Joint Chiefs of Staff at the Pentagon.

From Washington, D.C., Owens contacted the American Civil Liberties Unions Womens Rights Project (WRP), an initiative cofounded by then attorney and law professor Ruth Bader Ginsburg. The WRP agreed to take her case, and the lawsuit Owens v. Brown was filed as a class action on Nov. 10, 1976, in D.C.s federal district court.

Sirica was assigned the case. He was none other than the Watergate judge who ordered the Nixon administration to share tape recordings of White House conversations about the break-in. The April 1978 oral arguments for Owens v. Brown were held in the same courtroom that had held the Watergate trial.

On July 27, 1978, Sirica found that title 10, section 6015 of the U.S. Code the law the Navy was using to limit the assignments of women violated the equal protection guarantee in the Fifth Amendment.

In 1978, 25,000 women were serving in the Navy. Shortly after Siricas ruling, the Navy began assigning women to ships that were not expected to serve in combat. Subsequently, the Navy updated its policies in the 1990s to permit women to serve on combat ships.

Owens was 25 years old when her lawsuit was filed. She sued the service that her family loved, but she did so knowing that if the class action she led was successful, generations of women would benefit. History shows they have.

Thank you, Petty Officer Owens and the brave women who challenged the law with you. Thank you for your service to our country.

Named plaintiffs in Owens v. Brown, 1978, and pay grades at the time: IC2 Yona Owens, YN2 Suzanne Holtman (now Stout), PHSN Natoka Peden, LCDR Kathleen Byerly (Bruyer), LTJG Joellen Drag (Oslund), LTJG Suzanne Rhiddlehoover. YNSN Valerie Sites was on the original complaint but dropped out.

This article appears courtesy of Naval History and Heritage Command, and it may be found in its original form here.

The opinions expressed herein are the author's and not necessarily those of The Maritime Executive.

Read more from the original source:
Owens v. Brown: How The Navy's Women Won the Right to Serve at Sea - The Maritime Executive

A Minnesota jury last month convicted former Minneapolis police officer Derek Chauvin of three murder and manslaughter charges for killing George Floyd on May 25, when Floyd died while he was pinned facedown to the pavement for nine and a half minutes. Today the Justice Department announced that a federal grand jury has indicted Chauvin for violating 18 USC 242 by depriving Floyd of his constitutional rights under color of law.

If it seems like the federal government is trying to punish Chauvin a second time for killing Floyd, that's because it is. Under the controversial "dual sovereignty" doctrine, however, serial state and federal prosecutions for the same conduct do not violate the Fifth Amendment's ban on double jeopardy. Even if you accept that premise, it is reasonable to ask what purpose a second prosecution serves and whether it is just to punish Chauvin twice.

The most serious state charge against Chauvin, unintentional second-degree murder, carries a maximum penalty of 40 years in prison and a presumptive sentence of 12.5 years. The two federal charges, which allege that Chauvin violated 18 USC 242 by using "unreasonable force" and by failing to render medical aid after Floyd became unresponsive and no longer had a detectable pulse, carry a maximum penalty of life in prison or execution when the offense causes someone's death.

Douglas Berman, a sentencing expert at The Ohio State University's Moritz College of Law, notes that federal guidelines recommend that judges classify a crime like this based on the underlying offense. If that offense was deemed to be second-degree murder, for instance, the base offense level would be 38, which corresponds to a sentencing range of 235 to 293 months for a defendant with no criminal record. If the underlying crime was treated as voluntary manslaughter, the offense level would be 29, implying a sentencing range of 87 to 108 months. For reckless involuntary manslaughter, the offense level would be 18, meaning a sentencing range of 27 to 33 months.

Berman adds that "there can be all sorts of viable arguments for departures and variances." He says thatis "one of many reasons I think this will get hammered out as a plea deal whenever Chauvin's status in the state system is 'settled.'"

The elements of the federal crimes, which require proving that Chauvin "willfully" violated Floyd's constitutional rights, are superficially different from the elements of the state crimes. But to convict Chauvin of unintentional second-degree murder, the state jury had to conclude that he intentionally committed third-degree assault, meaning he knew his use of force was not legally justified. If so, he also should have known that his use of force violated the Fourth Amendment's ban on "unreasonable" seizures, which is the essence of the main federal charge.

According to the Supreme Court, none of that matters. Even when two levels of government define the offense the same way, the Court has said, serial prosecutions do not qualify as double jeopardy. In a 2019 case involving a man who was separately prosecuted for violating state and federal laws that prohibit people with felony records from possessing firearms, the Court reaffirmed the familiar but puzzling logic of the dual sovereignty doctrine: Since two "separate sovereigns" had criminalized the defendant's conduct, it constituted two distinct offenses under the Double Jeopardy Clause. Notwithstanding appearances, then, he wasnotprosecuted twice "for the same offense."

Still, the fact that the Justice Departmentcan prosecute Chauvin for the same actions that resulted in his state convictions does not necessarily mean itshould. The situation would be different if a state were unwilling or unable to punish police abuse, as frequently happened in the Jim Crow South. In such cases, the possibility of a federal prosecution is an important backstop that clearly serves the interests of justice. And it is a legitimate function of the federal government to vindicate the constitutional rights of people victimized by police when no one else is prepared to do so.

By that standard, a second indictment that the Justice Department announced today, which charges Chauvin with violating 18 USC 242 by assaulting a teenager in 2017, is more defensible. According to that indictment, Chauvin, "without legal justification," held the 14-year-old by the throat and struck him "multiple times in the head with a flashlight." Since Chauvin was not charged under state law in connection with that incident, he was never prosecuted for this alleged use of unreasonable force.

In the Floyd case, however, the state vigorously prosecuted Chauvinperhaps too vigorously, since Minnesota's quirky felony murder law allowed prosecutors to treat an unintentionally lethal assault, which ordinarily would be charged as manslaughter, as murder instead. But even without that count, Chauvin would still face a presumptive sentence of 150 months for third-degree murder (although the propriety of that charge is also a matter of dispute).

While some people might think that penalty is not severe enough, it is the punishment recommended by the Minnesota Sentencing Guidelines Commission, which was charged with doing so by the state legislature. And since we still don't know what Chauvin's state sentence actually will be, it is premature to say whether it is proportionate to his crime.

In any case, federal prosecutions aimed at "correcting" the criminal penalties that states deem appropriate second-guess the good-faith decisions made by state legislators and judges. Given the broad sweep of federal law, that practice opens the door to routine interference in cases that should be handled by state courts. The Justice Department's history of bringing duplicative "hate crime" charges against people who also face state prosecution for the same conduct suggests how arbitrary those decisions can be. Since the Constitution does not give the federal government a general "police power," the Justice Department should step in only when there is a clear federal interest that cannot be vindicated by state prosecution.

The federal charges against the three officers who witnessed or assisted Floyd's prolonged prone restraintJ. Alexander Kueng, Thomas Lane, and Tou Thaoare dubious for similar reasons. The indictment charges Thao and Kueng with violating 18 USC 242 by "willfully fail[ing] to intervene to stop Defendant Chauvin's use of unreasonable force." It also charges Lane, Thao, and Kueng with violating that law by "willfully fail[ing]" to render medical aid.

Although Lane helped restrain Floyd by holding down his legs, he also repeatedly suggested that Floyd should be rolled onto his side, a position in which it would have been easier for him to breathe. Those suggestions, which Chauvin rejected, may explain why Lane was not charged with failing to intervene.

Because the federal charges specify that the conduct of Chauvin's three colleagues "resulted in bodily injury to, and the death of, George Floyd," they carry the same maximum penalty (life or execution) as the charges against Chauvin. Meanwhile, all three officers have been charged under Minnesota law with aiding and abetting Chauvin's state crimes, which theoretically exposes them to the same state penalties that Chauvin faces. Their state trial is scheduled to begin on August 23.

Kueng, Lane, and Thao are all at least morally complicit in Floyd's death, although to different degrees and certainly not to the same extent as Chauvin, who was the senior officer at the scene and was mainly responsible for the assault that killed Floyd. Whether Kueng et al. are legally guilty of aiding and abetting manslaughter and murder is more debatable, especially with respect to Thao.

Thao, who began working for the Minneapolis Police Department in 2008, showed appalling indifference to Floyd's plight, assuring concerned bystanders that Floyd, despite his many complaints that he could not breathe, was fine. But Thao did not participate in restraining Floyd and was following Chauvin's lead in concluding that Floyd's life was not in danger. Kueng and Lane, both rookie officers, likewise can be expected to argue that they reasonably trusted Chauvin's judgment.

After the aiding and abetting charges were filed last year, Ted Sampsell-Jones, a professor at Mitchell Hamline School of Law in St. Paul, noted that they are "legally valid under Minnesota law" but "rely on some fringe doctrines of accomplice liability." Those doctrines, "which have long been criticized by progressive reformers, create expansive strict liability for minor participants in group crimes."

Even if one or more of these three officers is acquitted in state court, they will still face federal prosecution for the same conduct. And if they are convicted in both state and federal court, they will be punished twice. That prospect is especially troubling given their limited involvement in Floyd's death.

The shocking bystander video of Chauvin kneeling on Floyd rightly provoked nationwide outrage and led to protests across the country. But Chauvin and the other officers should be punished for what they did, not for the crimes of similarly brutal or negligent cops. If the Justice Department is prosecuting Chauvin, Kueng, Lane, and Thao to make a statement about the broader problem of police abuse, it is misusing its powers and perverting the criminal justice system.

Originally posted here:
Why Is the Justice Department Trying To Punish Derek Chauvin Twice? - Reason

As we read and watch the national news, attacks on some of our basic constitutional rights from both the legislative and executive branches of government in Washington, D.C. seem to be introduced with greater frequency and have become more audacious as time goes on.

In response to these ever increasing assaults, Legislative Resolution 107 was introduced in the Legislature this year by Sen. Mike Groene of North Platte.

This resolution was co-sponsored by 30 additional state senators, including myself.

In summary, LR 107 makes the following resolutions:

u It reaffirms our oath to maintain and defend the Constitution of the United States and the Nebraska Constitution.

u It recognizes that recent legislative and executive actions have the consequence of limiting states rights and sovereignty as well as the rights and liberties of the people.

u It protests plans to take action to violate our Second Amendment rights as well as those rights given by the Constitution of Nebraska to keep and bear arms for security or defense of self, family, home and others, . . .

u It protests federal government actions that would violate our First Amendment rights concerning the free exercise of religion as well as comparable rights provided by the Nebraska Constitution with regard to sexuality and the sanctity of life.

u It expresses distress as the prospect of proposed federal legislation that would dictate uniform election rules given the constitutional intent that the election process be left primarily to state legislatures.

u It protests the stated goal of the executive branch to put thirty percent of the land and water in the United States under permanent protection by the year 2030 and expresses concern about our rights under the Fifth Amendment of the U.S. Constitution that states, No person shall . . . be deprived of life, liberty, or property, without due process of law; . . .

u It protests potential federal mandates that restrains a persons right to peaceably assemble or restrict their freedom to travel or conduct commerce by mandating the vaccinations or vaccine passports.

Although yet to be advanced out of Legislatures Executive Board, LR 107 has already faced a concerted attack by some who would like to kill it.

Be assured, as a co-signer of LR 107, I will continue to support efforts to advance this resolution through the legislative process to reaffirm our constitutional rights and protest federal overreach.

I would welcome any comments, questions or ideas you may have on this or any other issue.

View post:
Voice of the People | | hastingstribune.com - Hastings Tribune

Breadcrumb Trail Links

Author of the article:

Publishing date:

The Kingston Frontenacs will be taking the fifth.

That doesnt mean the United States Fifth Amendment so they wont incriminate themselves in a crime, but the fifth selection in the Ontario Hockey League Priority Selection scheduled for June 4 and 5.

Kingston was awarded the pick on Wednesday evening in the first-ever OHL draft lottery. Since there were no games in 2020-21, all teams were given an equal chance for the top 2005 birth-year selection.

The Sudbury Wolves were awarded the first overall selection, with the Oshawa Generals receiving the second pick, followed by the Guelph Storm, Windsor Spitfires and Kingston.

Every OHL team had an equal opportunity to draw the first overall pick in the lottery process, with the final results determined by a computerized random number generator.

Among East Division rivals, the Peterborough Petes will draft sixth, the Ottawa 67s are at 12, and the Hamilton Bulldogs will pick 14 overall.

The OHL also announced the draft list for the Under-18 Draft (June 18), with Kingston selecting 14th, and the Canadian Hockey League Import Draft (June 30), with Kingston drafting 48th.

Frontenacs coach and general manager Paul McFarland said in an interview it was exciting to find out where the Frontenacs will draft in the priority selection.

This advertisement has not loaded yet, but your article continues below.

With everyone having the same odds, we didnt know how things were going to work out, and coming out with the fifth pick its a great opportunity for us to add another impact player to our organization, he said.

Obviously weve been working very hard on the draft to get ourselves organized, and well be very excited to call a player on that day at fifth overall.

Without minor midget AAA hockey and one-stop shopping scouting tournaments for top prospects in 2020-21 due to the pandemic, all OHL scouts and general managers faced challenges in evaluating players.

We all faced some scouting challenges this year, but at the end of the day those are all just really excuses, McFarland said.

We still found ways to see players, to evaluate players, whether it was going to rinks when everything was open and available or scouting through video, so youve got to do your homework and be the best prepared you can for the job and the task at hand, he said. No excuses are going to be made at our end; we will be prepared and ready to go on draft day.

McFarland said hes had virtual staff meetings during the lockdown and has spoken with many prospects over the past few months.

The priority selection will still last 15 rounds but will be held in a serpentine arrangement, with the order of selection in the first round reversing for Round 2 and also alternating each round thereafter. Kingston also picks 34th and 35th on the first evening of the draft.

This advertisement has not loaded yet, but your article continues below.

In 2019, centre Shane Wright, the exceptional status player and No. 1 choice in the priority selection by the Frontenacs, and defencemen Ty Nelson, the first overall selection by North Bay in 2020, were consensus first picks. If there is a cant-miss first overall selection in 2021, McFarland is not sharing his thoughts with the local media.

Youll have to ask someone else that one, he said.

OHL beat writer Ryan Pyette of the London Free Press said there are a number of players in the running for the No. 1 selection. The names that keep popping up, he said, are Oakville Rangers centre Calum Ritchie and defenceman Cameron Allan of the Toronto Young Nationals.

According to Prospect Pipeline, its top five rated players are defencemen Beau Akey of the Waterloo Wolves, Allan and Matthew Andonovski, and forwards Taeo Artichuk of the Markham Majors, ranked fourth, and Christopher Barlas of the Ottawa Jr. 67s, ranked fifth.

Ritchie is a six-foot-one, 180-pound pivot known for his two-way play and leadership qualities. His older brother, Ethan, is a member of the Frontenacs blue-line corps.

Youre not really evaluating where they are today, McFarland said. Youre trying to understand their potential and where theyre going to be at 17, 18 or 19 years old when they are playing in this league.

Sometimes the best guy today is not always the best guy tomorrow, and thats the challenge that comes with any draft.

The priority selection is just the first step in the development of an OHL player, McFarland said.

For us, weve got to work every day to help our guys get better and obviously grow within their game, he said. I think were all excited for the next season to start. Were champing at the bit to be back around the players every day.

From a coaching side, what we love most is getting a chance to practise, getting a chance to be on the bench for games, and thats what were all excited for. And were excited for our players to have that opportunity next year as well.

imacalpine@postmedia.com

twitter.com/IanMacAlpine

This advertisement has not loaded yet, but your article continues below.

Read more:
Frontenacs to pick fifth overall in OHL Priority Selection - The Kingston Whig-Standard

YOUNGSTOWN, Ohio (WKBN) A murder trial kicked off Tuesday in which the defendant didnt have a lawyer but the main prosecution witness had to have one appointed for him.

Brian Donlow, 25, was having a bench trial before Judge Anthony DApolito on charges of aggravated murder and attempted murder for the Nov. 18, 2018 shooting death of 21-year-old Christopher Jackson, of Warren, and the wounding of another man, Carlos Davis.

Donlow is representing himself, although the court did appoint a lawyer to be stand by counsel who will take over the case should Donlow request it. Donlow was convicted of an unrelated murder in February 2020 and is presently serving a 21 year to life prison sentence.

Police said the driver of the car was shot after an argument. Jackson, who was in the back seat, was also shot.

The trial hit a snag when the third witness, Davis, who is in custody for unrelated charges from Trumbull County, refused to answer any questions.

When he was asked how old he was, Davis said, I plead the fifth, referencing his Fifth Amendment right against self incrimination.

When asked if he had an attorney, Davis, who is in custody on a conviction on an unrelated charge, again answered, I plead the fifth.

Assistant Prosecutor Dawn Cantalamessa asked Judge DApolito to appoint an attorney for Davis so he could be advised of his rights and Davis conferred with attorney Ron Yarwood for about an hour.

After they returned to court, Yarwood told the judge Davis was prepared to invoke the Fifth Amendment and refuse to answer any questions regardless of the question by either the judge, the prosecutors or Donlow.

Yarwood said he advised his client that he could be found in contempt of court if the judge finds that he has no right to invoke the Fifth Amendment, but Davis relayed to Yarwood that he was prepared to take that risk.

Judge DApolito asked Cantalamessa if she was going to ask Davis any questions about criminal activity and she said no. Even with that assurance, Yarwood said Davis was concerned that without knowing what the questions were, he was afraid he may be asked something that could be about criminal activity.

Judge DApolito said that someones right to invoke the Fifth Amendment is not absolute. He said a person must have some sort of potential criminal liability to invoke the Fifth Amendment, and if they do not, they cant avoid it.

Davis was found in contempt of court and sentenced to 30 days in jail, the maximum sentence for someone found guilty of their first offense for contempt. The sentence will run consecutive to the sentence Davis is serving now from Trumbill County.

Prosecutors then continued their case.

Jackson was found shot to death about 2 a.m. in a running car in a field at Bennington and Stewart avenues on the east side.

In a brief opening statement, Assistant Prosecutor Mike Yacovone said Davis and Jackson picked up three men who turned out to be Donlow and the other two defendants in the case, and with no warning, they shot both Davis and Jackson.

Jackson died in the car while Davis ran to a nearby home and collapsed on the porch. That homeowner called police.

Donlow also gave a brief opening statement, saying there is no evidence to show he was in the car with Jackson and Davis.

In February 2020, Donlow was convicted of the June 30, 2019 shooting death of 30-year-old Brandon Wylie at the Plaza View apartment complex on the east side.

Also convicted with Donlow was 23-year-old Stephon Hopkins. They are both serving prison sentences of 21 years to life.

Hopkins and a third man, 23-year-old Lorice Moore, face the same charges as Donlow does in the Jackson case. They will be tried at a later date.

Read more:
Trial hits snag for convicted murderer charged in another deadly Youngstown shooting - WKBN.com

The latest attempt to get Nebraska to join 15 other states in calling for a conference to propose amendments to the U.S. Constitution has failed.

Article Five of the U.S. Constitution provides two ways to amend that constitution.

The first is for Congress to propose amendments by a two-thirds vote in both the House and the Senate, and three quarters of the state legislatures approved. Thats the way all 27 amendments to the Constitution have been made so far.

The other way is for the legislatures of two-thirds of the states (34) to call a convention to propose amendments, which would also have to be ratified by three-fourths of the states (38).

Thats never been done. But 15 states have so far agreed to call for such a convention, to consider three subjects: First, to impose fiscal restraints on the federal government; second, to limit the power and jurisdiction of the federal government, and third, to limit the terms of office for its officials and for members of Congress. The idea is being promoted by Citizens for Self-Governance, a group with ties to the Tea Party movement.

A proposal by Sen. Steve Halloran would have made Nebraska the 16th state to join in the call for a convention. But the proposal remains bottled up in the Government, Military and Veterans Affairs Committee.

Friday, Halloran tried to get the Legislature as a whole to pull the bill out of committee onto the legislative floor for debate. Sen. Tom Brewer supported Hallorans move. Brewer, a retired 27-year Army veteran, said the issues are important.

I hold the Constitution as dear as anyone. You dont live the life Ive lived and not have that the bedrock of what you do. So Im not excited about changing it either except, I see no other path ahead. Its great to say well, something will come up. Well figure something out. Itll work out. The truth is, were on a death spiral with our budgeting, Brewer said.

Sen. Steve Erdman also supported a convention.

If youre fine with the government running out of control like they are today, then we just need to continue the road were on. But if youre concerned that we may be spending a little too much money; if youre concerned about the way things are in Washington, D.C. and they need to reined it; if youre concerned about all the issues that are coming down in executive order(s) and all the things that are happening to us, then we need a convention of the states, Erdman said.

Sen. Adam Morfeld called the idea dangerous. Morfeld said once a convention is called, there wouldnt be any way to make sure it sticks to the three subjects mentioned in the resolution.

Does anybody think right now that we should be having a constitutional convention in Washington, DC? Does anybody honestly think that thats going to go well? Does anybody honestly think that theres not a danger that they could amend other constitutional amendments that we all hold dear, whether its the First Amendment, the Second Amendment, the Fourth Amendment, the Fifth Amendment, maybe states rights the Tenth Amendment? Morfeld asked.

Brewer, who chairs the committee where the bill is stuck, said he thinks when the Legislature organized itself at the beginning of this year, his committee was deliberately structured to produce stalemates on controversial legislation.

You have a deadlocked committee that is never going to change in their view of the world. And if anybody tracks the Government Committee, I think it was designed by the Committee on Committees to be that very thing: a deadlocked four on four committee, he said.

The committee consists of three registered Democrats Sens. Carol Blood, Matt Hansen, and Megan Hunt, and one registered Republican, Sen. John McCollister, who often sides with the Democrats in the officially nonpartisan Legislature.

These four are offset by four other registered Republicans: Brewer, Halloran, and Sens. John Lowe and Rita Sanders. Sen. Hunt, a member of the Committee on Committees that makes assignments, affirmed Brewers thought that that deadlock was deliberate.

We worked very hard over four days to make sure that that Government Committee was four-four. And why? Because we have a ton of voter suppression bills coming through that committee and we knew that we would. We have winner-take-all elections. We have voter ID. We have extremely expensive bills proposed to supposedly make our elections more secure, but it would actually just disenfranchise even more people. And we had to keep those ideas in committee, Hunt said.

It would have taken the votes of 25 senators to pull Hallorans proposal for a convention of the states out of the committee and have it debated by the full Legislature. On Friday, he got only 23 votes, with 14 senators voting no.

Original post:
Convention of states blocked in Legislature | netnebraska.org - NET Nebraska

Week Three: April 12 April 15, 2021

Entering week three of the Derek Chauvin trial, jurors will hear the final testimonies as the prosecution and defense are expected to rest their case. Judge Peter Cahill informed jurors he expects closing statements starting April 19 to which the jury would then be sequestered.

The prosecution brought George Floyds younger brother, Philonise Floyd to testify April 12 where he briefly spoke in memory of his late brother.

He was so much of a leader to us in the household, he would always make sure we had our clothes for school, make sure we would get to school on time, Floyd said. He just was that person that everybody loved around the community. He just knew how to make people feel better.

In addition to Floyds brother, the prosecution also brought forward a law professor at the University of Southern California (USC) and former police officer, Seth Stoughton, to further strengthen the argument of Chauvin using excessive force on Floyd.

Upon studying over 40,000 pages of documents in the case and reviewing various video footage showing different perspectives of the event, Stoughton stated the force used on Floyd was justified until the officers had removed him from his vehicle. Stoughton further explained how Floyd was no longer resisting yet Chauvin continued to use unacceptable and unreasonable force.

As the prosecution rested their case to prove Chauvin responsible for the death of Floyd, the defense began to bring their witnesses on the twelfth day of the trial.

One of six witnesses to testify was former police officer Barry Brodd, who has had 35 years of experience in training other officers. Brodd further explained that Chauvin was following the practices he had been taught and was justified in the force he used upon Floyd.

Former chief medical examiner of Maryland, David Fowler, was also brought forward by the defense April 14 to share his belief of what caused Floyds death. Reviewing footage and medical records, Fowler explained that the combination of Floyds drug use, heart disease and exposure to carbon monoxide from the exhaust pipe all contributed to Floyds death.

On the final day of testimonies, the third week of the trial ended with Chauvin invoking his Fifth Amendment right to decline to testify in his own defense.

Following the statement, both the defense and prosecution rested as Judge Cahill adjourned the trial for a long weekend. Closing statements will begin April 19.

Closing Arguments April 19, 2021

After 14 days of testimonies, the jury will begin to deliberate on Derek Chauvins trial who has been charged with second-degree unintentional murder, third-degree murder and second-degree manslaughter for the killing of George Floyd.

Closing arguments were presented April 19 starting with prosecution lawyer Steven Schleicher, followed by defense attorney Eric Nelson.

The prosecution further reminded the jury of the images showing Chauvin fully resting his knees on the neck of Floyd as he pleaded for help and continuously stated the words I cant breathe.

What the defendant did was not policing. What the defendant did was an assault, Schleicher said. He did what he did on purpose and it killed George Floyd. That force for nine minutes and 29 seconds. That killed George Floyd.

Following the prosecution, Nelson presented the defenses closing argument.

As Nelson used the repeating statement reasonable police officer to refer to Chauvin, the defense argues that prosecution does not consider the moments leading up to the former officer kneeling on Floyd. Further, Nelson states how Chauvin was justified in his actions as Floyd was actively resisting.

After the closing arguments, the 12 jurors began four hours of deliberation and are expected to resume the following day April 20. If convicted, Chauvin may face up to 40 years in prison, however some legal experts state that because he is a first time offender, he will likely be sentenced to less.

Verdict April 20, 2021

Derek Chauvin has been found guilty of the murder in the death of George Floyd. After two days of deliberation, the jury reached a verdict stating that Chauvin is guilty of second-degree murder, third-degree murder and manslaughter. Chauvin faces up to 40 years in prison for second-degree unintentional murder, however because he has no prior felonies the state of Minnesota allows for a lessened sentence of 11 to 15 years. Before being taken into custody, Judge Cahill stated bail for Chavin has been revoked.

Expressionless as the verdicts were read, Chuavin nodded his head and was taken away .

Judge Cahill further stated the sentencing will take place eight weeks from April 20. The three other officers who were involved are expected to go on trial August 2021 and have been charged with aiding and abetting.

Read more here:
Derek Chauvin Trial: Updates The Spectator - The Spectator

Facebook Twitter LinkedInReddit EmailPrint

People who have watched the Derek Chauvin trial have seen video of the passenger in George Floyds SUV, a man dressed in red sweatpants with blue stripes down the side, a white shirt, and a red baseball cap.

His name is Morries Hall, the person whom Courtney Ross, George Floyds girlfriend, suspected of supplying him with drugs. In his opening statement, Chauvins lawyer promised the jurors that they would hear from Hall that Floyd consumed pills while they were in the car.

The most hotly contested issue in the Chauvin case will be the cause of death. The prosecution intends to prove that Chauvins restraint of Floyd was a substantial cause of his death. The defense wants to introduce reasonable doubt by arguing that he died of an accidental drug overdose. On the overdose issue, Halls testimony appears to be quite important. The problem for the defense, however, is that he may not testify at the trial.

Hall is currently being held at the jail in downtown Minneapolis, where he appeared, via video, earlier this week.He is being held in jail on a domestic assault charge from another county. He has received subpoenas from the defense and the state; he is right across the street from the Government Center, where the trial is being held, so how it is possible that he may not testify?

Under the Fifth Amendment to the United States Constitution, a person has a right not to incriminate oneself. When a witness, who is subpoenaed for trial, is going to be asked questions under oath, and answering those questions could force him to make admissions of guilt to a crime, a lawyer is appointed to represent him to discuss whether he can, or should, invoke his Fifth Amendment right to remain silent.

The Hennepin County Public Defenders Office represents potential witnesses who are eligible for public defender services. Halls lawyer, public defender Adrienne Cousins, moved to quash the subpoenas summoning him to testify. Quash simply means that the judge would cancel the subpoena. Earlier this week, the judge held a hearing to determine whether Hall had legitimate Fifth Amendment concerns.

During the hearing, the judge asked the defense what he intended to ask the potential witness. In response, the defense listed the following questions: Where did the counterfeit $20 bill come from? Why did he give a false name to the police? What object did he throw from the backpack he was holding? Why did he leave the state? And where did Floyd obtain his drugs?

Each of these proposed questions could force Mr. Hall to give information, under oath, which could later be used to prosecute him. This is exactly what the Fifth Amendment to the constitution protects against. Lets look at the answers those questions could elicit from Hall.

If he acknowledged knowingly passing a counterfeit bill, giving a false name to the police, possession of drugs, and sale of drugs, he could be prosecuted for those crimes.

The biggest danger to Hall is that he could be charged with third-degree murder if he sold or gave Floyd the drugs that led to his death. This is not the same section of the third-degree murder statute with which Chauvin is charged. There is a different section that pertains to drug overdose deaths.

It does not matter that the Attorney Generals theory in the Chauvin trial is that Chauvins actions caused Floyds death. Hall could theoretically be prosecuted by the Hennepin County Attorneys Office for third-degree murder for providing the drugs that led to his death. Chauvins defense lawyer has hired a medical examiner who will presumably testify that Floyd died of a drug overdose, so its not farfetched that Hall could be charged with third-degree murder for providing those drugs to him.

The judge appeared to agree with Cousins that Halls Fifth Amendment rights were properly invoked, with one exception. He seemed to leave open the door for the defense to ask Hall about Floyds demeanor. The defense lawyer was ordered to write out his proposed questions and the judge will decide whether Hall can be put on the stand at all.

A lawyer cant call a witness simply to ask him questions to which he invokes his Fifth Amendment right to remain silent. Otherwise, the defenses questions would be, You gave George Floyd fentanyl pills right before the police arrived? Hall would then answer, I invoke my Fifth Amendment right to remain silent. Although he is not agreeing to the question, the defense is suggesting the truth of the statement just by posing the question.The judge is not going to allow that to happen in the Chauvin trial.

Although the state also subpoenaed Hall, it is clear they do not want him to testify. If they wanted his testimony, they could decide to give him immunity (or get an agreement from the Hennepin County Attorneys Office) from prosecution on any potential drug, counterfeiting, or murder charges.

By giving him immunity, he would have to testify because there would be an agreement in place that nothing he said could be used against him. The state has not made that offer, however, so if the judge decides to quash the subpoena the defense is out of luck.

Excerpt from:
Morries Hall and the right not to incriminate yourself (Fifth Amendment) - MSR News Online

The Fifth Amendment of the Constitution ensures an individual does not self-incriminate.

MINNEAPOLIS The discussion within court this morning, even before the trial began, was about whether Morries Hall would take the witness stand.

This discussion happened before the jury even got into the court room.

Hall was with George Floyd that May night when Floyd was arrested by Minneapolis Police outside of Cup Foods.

Through his attorney Adrienne Cousins, Hall said he would 'plead the Fifth,' a constitutional right that prohibits self-incrimination and protects an individual from getting him or herself in trouble.

"At this point in time, Mr. Hall has no immunity," Hall's attorney Cousins said. "He has been provided no immunity, no protection for his testimony whatsoever. Because of that, Mr. Hall is invoking his Fifth Amendment privilege against self incrimination, in several key areas of questioning that we believe he would face, if he were to be called to testify."

Cousins explained that by opening her client up for questioning about many things related to the night George Floyd was killed, Hall could incriminate himself.

"[That would] put him in the position of being in very close proximity to Mr. Floyd," Cousins continued. "There is an allegation here that Mr. Floyd ingested a controlled substance, as police were removing him from the car, a car by the way that has been searched twice, drugs have been found in that car twice. This leaves Mr. Hall potentially incriminating himself for prosecution for third degree murder."

Mitchell Hamline School of Law professor Brad Colbert said that's what he would have done too, had he been the one to represent Mr. Hall.

"Absolutely," he said. "There is no benefit for him testifying, there is no legal way that's going to benefit him so it's a really easy call."

Colbert explained that there are several charges that Mr. Hall could open himself up to.

"Relatively minor charges like drug possession but there's also a serious possibility of a murder charge because the defense theory of the case is that Mr. Floyd died of drug ingestion and if the witness was the person who supplied the drugs, he could certainly be charged with Mr. Floyd's murder."

That's precisely what Hall's attorney Cousins had said.

That the 3rd degree murder charge can be interpreted in many ways.

"That statue is broad judge," Cousins said. "It doesn't just include a situation if A sells drugs to B, B then succumbs to an overdose, in fact it includes, any activity directly or indirectly, unlawfully, selling, giving away, bartering, exchanging, distributing or administrating a controlled substance classified as schedule one or two."

Colbert also says recognizing the Fifth Amendment, for what it is, involves realizing that whoever plead it, isn't innocent or guilty.

"It's important to recognize that it protects everyone, innocent and the guilty," Colbert said. "The idea is that in our system, we want to make sure everybody is able to keep their thoughts to themselves, that you have a private place for yourself. It's also the way our system works in that the government has the burden of proving that someone is guilty beyond a reasonable doubt."

At this point the state has not offered any immunity to Mr. Hall. Judge Peter Cahill told defense attorney Eric Nelson to put in writing the questions he wants to ask Mr. Hall - and that judge will revisit the issue later this week.

Originally posted here:
Man who was with George Floyd during his arrest pleads the Fifth amid Chauvin trial - KARE11.com