Today in Supreme Court History: August 28, 1958

8/28/1958: Cooper v. Aaron is argued.

Comments

[Dan Schiavetta]

Willhauck v. Flanagan, 448 U.S. 1323 (decided August 28, 1980): Brennan denies stay of prosecutions by two D.A.’s arising from high speed car chase through adjacent counties; defendant had argued violation of Double Jeopardy clause and Brennan suggests that there is a double jeopardy exception for Younger abstentions, but jeopardy would not “attach” until jury was sworn in (I always thought that phrase was pretty meaningless; to say “jeopardy attaches when the jury is sworn in” means very little — defendant can be retried if there’s a hung jury or a mistrial) (defendant eventually got one prosecution dismissed on double jeopardy grounds, but look how long it took, 953 F.2d 689 (1st Cir. 1991) -- and it wasn’t even a death penalty case)

Dayton Board of Education v. Brinkman, 439 U.S. 1357 (decided August 28, 1978): Stewart denies stay in desegregation case because to grant it would disrupt current plan

Penry v. Texas, 515 U.S. 1304 (decided August 28, 1995): Rehnquist puts his foot down and denies 59-day extension of time to file cert petition; extensions in earlier cases were “when I was a new Circuit Justice” and complexity of case cannot be a reason for extension because counsel’s own Circuit Court brief ran 375 pages with 132 points of error and he must now have “considerable familiarity with the record”

[not guilty]

A defendant cannot always be tried following a mistrial. Where there was not a manifest necessity for the court to declare a mistrial, double jeopardy bars further prosecution. The inability of the jury to reach a verdict is the most common form of "manifest necessity".Oregon v. Kennedy, 456 U.S. 667 (1982) (where governmental misconduct is intended to "goad" the defendant into moving for a mistrial, double jeopardy may bar a retrial).

[Dan Schiavetta]

Thanks.

I do understand the phrase “jeopardy attaching” a little better than I did a year ago when I first posted this case (which is why I’ve reworded the summary a little bit). 1) Once the jury is sworn in, the resolution (by way of verdict, or plea deal, or decision by prosecution to drop charges) is final. A mistrial or a hung jury is not a resolution. 2) Before the jury is sworn in, the prosecution can just drop things and start up again later. But not after.

[Dan Schiavetta]

today’s movie review: Elvira, Mistress of the Dark, 1988

Cassandra Peterson, TV horror movie hostess, co-starring with her cleavage (was that really her in G-string and pasties on that Tom Waits album cover?), inherits a house in Salem, Massachusetts and of course finds evil spirits about. Her “unconventional” lifestyle raises hackles among the stupid and easily distracted Puritan town officials (including the great Edie McClurg) and she is being watched by William Morgan Sheppard as a truly scary demon (not stupid or easily distracted) who killed Elvira’s grandmother.

This is a fun movie, with Elvira giving her new dog a Mohawk haircut, taking over the local cinema apparently to pollute the minds of the local youth — note McClurg fainting when Elvira, clumsily changing the marquee (carrying the letters on her boobs), seems to be announcing a film called “How to F*ck” — and breaking open locked gates with her breasts, and seriously wounding the old demon by flinging her high heel at him. (The film echoes the historical Puritans’ frustrations with the lusty-living debauchers at the nearby Merry Mount colony.)

Halloween in general is fun, and that’s a good thing. Anything that turns ghosts and devils and witches into jokes has my support. Also kids like to play “monster”: perhaps they like that there are some scary things they can control. My younger daughter, the baby of the family, loved to play “shark”, roaring at us so that we scurried into corners where she closed in for the “kill”. (Sharks don’t roar but who cares?)

The occult still fascinates people, and scares some of them. When going trick-or-treating with our kids we got to one house without decorations (that should have tipped us off). The little girl at the door said her family didn’t believe in Halloween. In college, when I jokingly asked a friend what Zodiac sign she was born under, she said, defensively, “The sign of the Cross”. To my friend (and to that poor little girl) demons are real. I’ve gone on about this already but almost all religions have some version of the Devil, and that is a bad thing. “Evil” might be useful as an adjective but as a noun it is not. You don’t need a demonic explanation for the horrible things that humans do to each other. Interpersonally it can be a way of avoiding responsibility.

Nor is there some kind of psychological need to posit a Devil (as there is arguably a need to post a God). One of my other born-again-Christian friends asked why people are still afraid of the dark. I couldn’t answer but now I think it’s simply because our night vision is so poor. Being afraid of the dark is evolution’s way of protecting us from tigers in the night. Just stay in your cave! In the same way we are naturally afraid of heights — we don’t survive falls very well. Cats, who do, are not.

What does Elvira’s cleavage have to do with all this? Nothing. Or maybe everything?

[Magister]

There's a very real psychological need for a devil; it's an excuse for poor behavior, "the Devil made me do it". Judge Frollo in Disney's The Hunchback of Notre Dame laments that God made the Devil so much stronger than a man, and so his lust for Esmerelda and other general crappiness are not his fault. It pairs with superstitions like knocking on wood; if you don't, then you might be responsible for whatever bad things happen, but you're off the hook if you did the meaningless rituals. The latter is the illusion of control and to deny the blame for bad luck, and the former the excuse for lack of self-control.

[Dan Schiavetta]

Yes, true.

Yesterday I quoted Bonhoeffer as to man's "coming of age". Owning up to one's actions (instead of blaming them on devils, other people, etc.) is part of growing up.

[F.D. Wolf]

If one needed an excuse for bad behavior, a much more convenient one would be to believe in nothing, that all creation is nothing but the random confluence of molecules. In such a belief system, every action is just a product of external forces. There is no free will or moral responsibility in such a universe. To blame anyone for anything would be like blaming a tree for falling in the wind.

[Magister]

Besides undercutting motivation to do anything, that lets everyone else off the hook too; unacceptable to someone like Judge Frollo. The Devil would obviously spend all his effort on the most righteous, giving them a superior excuse.

[Dan Schiavetta]

F.D.:

I don't think that excuse is actually much used, except in fiction like that of Camus. If pressed for an excuse most criminals would cite revenge, greed, or momentary loss of self-control. (Those that aren’t out-and-out crazy, that is.) They, like most people generally, acknowledge being bound by society’s ethics, whether they can identify the source of those ethics or not.

[Rev. Arthur L. Kirkland]

to believe in nothing, that all creation is nothing but the random confluence of molecules

It's silly superstition or nothing, in your estimation?

[Purple Martin]

F.D, are you arguing the religionist point that people could not figure out a framework of morals, or societal, or even personal good, without an all-powerful authority figure to set and enforce the (sometimes nonsensical) rules?

Personally, I feel sorry for those who apparently feel they can’t detect what is good without being told by a religion—that seems a sad and bitter approach to life. But I don’t think you believe that, so why are you trying to use it in an argument?

Perhaps you’re just unfamiliar with the academic field of the origin of human ethics and morality. Social animals seem to exhibit empathy and the behavior it engenders, or their societies just wouldn’t work. Nature seems to select for it. There’s a general hypothesis that Empathy is the root of human goodness. Recognizing that you are not alone in your needs, your abilities to feel pain, your capacity for love and friendship, is where the golden rule (common to most religions and much humanistic philosophy) originates.

Empathy then leads to Compassion—a related but more advanced concept. Then adding Enlightened Self-Interest leads to the development of the Social Compact. This all affects the development of human morality, ethics and values, without religion as a necessary component (For an introduction to the topic, search for Frans de Waal’s The Greater Good theory. I still interested, go back and review Hobbes and Spinoza’s thoughts around the social contract).

My values come from a sense of empathy, a rational understanding that I have no more intrinsic worth than any other human, and a desire to live my life as much as possible according to the principles of reason and logic. These—far from “nothing but the random confluence of molecules—seem useful and helpful principles to hold, not just for me but for my fellow humans, regardless of their beliefs on the unknowable.

[The Margrave of Azilia]

How can I have missed this movie?

And it sounds like it merely suggests merry mounting, doesn’t actually show it.

Of course, the movie suggests tired old jokes like “scared stiff” and “boo-bs,” but since those jokes are only repeated in this comment, you’re past them now.

[Dan Schiavetta]

At the bar I played at (bass player with weak backup voice, but 200 brands of beer) there was an Elvira pinball machine with the pins situated over her various body parts with associated vocalizations. When you hit the "jackpot" her voice would say, "You can't touch me there!"

[Magister]

There was an earlier pinball machine, Xenon, that moaned suggestively as bumpers were hit.

[The Margrave of Azilia]

How does the devil excuse *his* behavior?

[Magister]

Why would the devil seek to do so?

[The Margrave of Azilia]

Because making up excuses is evil, and the devil wants to get in on whatever is evil?

So is it pressure at work, or did Cerberus eat his homework?

[Magister]

Isn't it more evil not to make excuses? The devil has a reputation for glibness, or would certainly be able to find a devil's advocate. Probably would blame God for creating him to be that evil.