I wish everyone a very Happy Thanksgiving. For everyone in the military serving away from family, and emergency responders on duty, thank you. My mother was a paramedic and I remember the many holidays with her working to keep others safe.
One of my Thanksgiving traditions is reading President Abraham Lincoln’s 1864 Thanksgiving Proclamation. I posted it below from The American Presidency Project.
It has pleased Almighty God to prolong our national life another year, defending us with His guardian care against unfriendly designs from abroad and vouchsafing to us in His mercy many and signal victories over the enemy, who is of our own household. It has also pleased our Heavenly Father to favor as well our citizens in their homes as our soldiers in their camps and our sailors on the rivers and seas with unusual health. He has largely augmented our free population by emancipation and by immigration, while He has opened to us new sources of wealth and has crowned the labor of our workingmen in every department of industry with abundant rewards. Moreover, He has been pleased to animate and inspire our minds and hearts with fortitude, courage, and resolution sufficient for the great trial of civil war into which we have been brought by our adherence as a nation to the cause of freedom and humanity, and to afford to us reasonable hopes of an ultimate and happy deliverance from all our dangers and afflictions:
Now, therefore, I, Abraham Lincoln, President of the United States, do hereby appoint and set apart the last Thursday in November next as a day which I desire to be observed by all my fellow-citizens, wherever they may then be, as a day of thanksgiving and praise to Almighty God, the beneficent Creator and Ruler of the Universe. And I do further recommend to my fellow-citizens aforesaid that on that occasion they do reverently humble themselves in the dust and from thence offer up penitent and fervent prayers and supplications to the Great Disposer of Events for a return of the inestimable blessings of peace, union, and harmony throughout the land which it has pleased Him to assign as a dwelling place for ourselves and for our posterity throughout all generations.
In testimony whereof I have hereunto set my hand and caused the seal of the United States to be affixed.
Done at the city of Washington, this 20th day of October, A.D. 1864, and of the Independence of the United States the eighty-ninth.
In honor of Veteran’s Day today I am writing a post about my grandfather, Grandpa Stan. He was a Merchant Marine during World War II and I knew that, but I never really understood what it meant. And just like many people of that generation, he never talked about what happened during his service during the war. So I never thought much about his service, even when my mom told me about a medal he received from some town in Russia while I was in college (typical self-absorbed college kid!).
Today I am rectifying that mistake – I’ve learned about the Merchant Marines and why my grandpa got a medal from a Russian town and I’m going to share that knowledge with all of you.
The United States Merchant Marine is responsible for operating marine vessels that transport goods and services. But during times of war, it can also operate as an auxiliary to the Navy, delivering troops and supplies for the military. During World War II, the Merchant Marines were vital to the Allies’ success – transporting the personnel, supplies, and equipment needed for the military effort. This key contribution was targeted by the enemy, however, and the Merchant Marines actually suffered a greater percentage of war-related deaths than any other U.S. service, with 1 in 26 mariners during World War II dying in the line of duty.
The mariners faced many deadly attacks, but one that was notoriously dangerous was known as the Murmansk Run. Murmansk, a Russian seaport located north of the Arctic Circle, was a key city for the Allies because its harbor didn’t freeze in the winter. So the Allies used this city to keep supplies running to the Russians, while the Germans used submarines and surface warships (along with bases in the north of occupied Norway) to try and stop the flow of supplies to the Russian front.
These convoys of vulnerable merchant marine ships were not only crucial to the Allies’ war efforts but also to the survival of the Russians under attack and blocked off by the Germans. And it was for this service that my grandpa received his Russian medal. He was one of the mariners that risked his life to deliver supplies (including salt pork, shoes, and tanks) to Murmansk in 1945. Grandpa Stan was the Executive Officer on the William Wheelright, part of a convoy that sailed out of New York and stopped in Scotland for refueling before heading north of Norway and to Murmansk, facing attacks by the Germans along that route. They landed in Murmansk just as President Roosevelt died and the Germans surrendered the same day they arrived back in Scotland.
My grandfather was in one of the last convoys to make the dangerous Murmansk Run. And forty years later, in 1985, the Russian Federated Republic awarded a bronze medal to those who had made an outstanding contribution to the Allies’ effort, including those who made the Murmansk Run. Grandpa Stan was invited to a ceremony in Russia but turned it down, asking them to mail the medal instead (he never liked to make a fuss over anything).
So, this Veteran’s Day, I’m proud to learn a little more about the risks taken – and sacrifices made – by the veterans among us. In honor of my grandfather and the many other men and women (both civilian and military) who have risked (or lost) their lives defending us, I want to say thank you. Your contribution and bravery are always remembered, but today we all take a moment to pause and reflect upon the heavy price you paid for the rest of us. And I’m glad I’ve learned a little more about my grandfather, although I wish I had learned this before he passed. I love you, Grandpa.
President Kennedy challenged the country to be bold. We answered the challenge, doing what had only been the stuff of dreams since Mankind first looked up at the night sky.
In honor of this significant historic event, let’s celebrate with reviewing the legal issues of sending human beings to the Moon and “Lunar Litigation.”
If I were a NASA Lawyer in the 1960s…
Presidents Kennedy, Johnson & Nixon needed lawyers for many reasons. What would a 1960’s Era NASA lawyer be concerned about?
Government Contracts: Saturn V rockets, Apollo capsules, and Lunar Landers did not build themselves. The entire contract process probably rivaled the complexity of the technical requirements to get to the Moon.
Engineers have the right stuff to design space ships, but the process to order the construction of the ships required help from attorneys.
Assumption of Risk for the Astronauts: Make sure the Astronauts understand the risk they are engaged in doing. That means an employment contract that clearly stated the risks of space flight and going to the Moon. That could include anything from exploding on the launch pad, to being trapped on the Moon, to contracting a “space virus” that could destroy the human race if returned to Earth.
Provided the Original Seven and New Nine all had military or test pilot experience, they understood the that there were risks in flight.
Insurance for the Astronauts: Develop life insurance policies for those traveling from the Earth to the Moon on a rocket that makes slightly less noise than a nuclear bomb going off.
No Keepsakes from NASA: Make sure employees and astronauts understand that hardware developed for the mission belongs to the government.
Former Astronaut Edger Mitchell tried to sell a camera used on his Apollo 14 mission. NASA sued to get it back. United States v. Mitchell, 2011 U.S. Dist. LEXIS 125844 (S.D. Fla. Oct. 3, 2011).
Eminent Domain & Project Apollo
Trailblazing to the moon has made it necessary for the United States, exercising its power of eminent domain, to acquire large tracts of land here on earth. One such acquisition included 654.43 acres owned by appellant Colton, who received as just compensation for the taking an award fixed by a jury in the United States District Court for the Middle District of Florida. The principal issue on this appeal is whether the district court erred, as the appellant contends, in disallowing evidence of enhancement in the land’s value caused by the original establishment of a space facility to which the appellant’s land was later added. We hold that this evidentiary exclusion by the district court was improper and that the judgment must be reversed.
The record before us provides an interesting account of early developments in our nation’s manned lunar landing program, accelerated in May 1961 when President Kennedy called upon Congress and the country to send an American to the moon and back before the end of the decade. The President’s challenge was accepted and, as this opinion goes to the printer, two American astronauts prepare to depart from the moon after successfully landing there and exploring the lunar surface. An initial step in the implementation of this national goal was the selection of a launch site. Officials of the National Aeronautics and Space Administration, after considering various locations, selected Cape Canaveral, Florida, now Cape Kennedy. On August 24, 1961, the Justice Department, acting upon a request by NASA Administrator James Webb, filed in the district court a complaint in condemnation describing a 72,644-acre tract of land needed for the project.
United States v. 2353.28 Acres of Land, 414 F.2d 965, 966-967 (5th Cir. Fla. 1969).
Long Before eDiscovery Cases
The instant case demonstrates once again the paradoxes within the spectrum of the practical application of the computer sciences. At its best, the computer has enabled NASA to send men on lunar missions zooming 238,857 miles into outer space so that they may land softly on the moon and return safely with pinpoint landings despite reentry speeds of 25,000 miles per hour. For computer science application at its worst, Pennsylvania’s Department of Public Welfare (DPW) could not master the less dramatic task of assuring a proper disbursement of checks to 3,502 deserving recipients in the counties of Allegheny, Dauphin, Delaware and Philadelphia.
Brower v. Wohlgemuth, 371 F. Supp. 863, 864 (E.D. Pa. 1974) [Emphasis Added].
What About Those Moon Rocks?
There have been many cases involving Moon rocks. Here is one that even included dinosaurs:
According to the presentence investigation report (“PSI”), Roberts had participated in a criminal scheme, whereby he and several co-conspirators stole lunar samples and Martian meteorites from the National Aeronautics and Space Administration’s (“NASA’s”) Johnson Space Center in Houston and transported these items in interstate commerce for the purpose of selling them and using the sale proceeds for their own enrichment. During the course of the conspiracy, Roberts and some of his co-conspirators stole a 600-pound safe containing “lunar samples from every Apollo mission that landed on the moon, documentation authenticating the lunar samples, Martian meteorites, and other items from NASA/JSC.” After transporting the lunar samples and meteorites to Florida to sell them to purported buyers, Roberts was arrested by undercover FBI agents who had been posing as the buyers. Additionally, in an unrelated case, Roberts, while working as an intern for the paleontologist department of the Utah Museum of Natural History, had possessed in his residence several items of stolen U.S. property, including dinosaur remains and other vertebrate specimens that belonged to the U.S. Bureau of Land Management, the National Forest Service, and the National Park Service.
United States v. Roberts, 155 Fed. Appx. 501, 503 (11th Cir. Fla. 2005).
There and Back Again
I look forward for us to return to the Moon and ultimately Mars. I was technically alive for the final Apollo mission with the Soviet Union. I really wish that mission instead had been used to service Skylab, so our first space station would have still been in orbit by the time Space Shuttle Columbia was launched in 1981.
One of my earliest memories was the roll-out for the Space Shuttle Columbia. My father was in charge of installing the tiles.
I saw the last two Space Shuttle launches. I was glad I could take my father back for the grand finale of the shuttle program.
It is time to leave near Earth orbit and go beyond where we left off in 1972. The Space Program is a very American adventure. It inspires us to learn science, math and more importantly, dream. It creates jobs and improves technology. Without the Space Program of the 1960s, we would not have had the Computer Revolution of the 1970s.
Fundamentally, the Space Program brings us together as a country. It is time to take another step towards the future.
Thomas Jefferson, Declaration of Independence, July 4, 1776
One of my motivations for becoming an attorney was my love of country.
Celebrating our Declaration of Independence on the 4th of July has always been very important to me (Just as is Constitution Day).
Not because of memories of my grandfather making homemade ice cream by hand, fireworks in front of our house or marching in the local parade as a youth.
Those things made up my American Experience.
My love of the 4th of July is heavily fueled by my love of history. From the events of 1763 to the Declaration of Independence; from to the Federalist Papers to the United States Constitution and ultimately the Bill of Rights, essentially define American life in the United States. The story of how all came about have been the subject of many books, each with great leaders who will be remembered as long as we have a country.
Nature throws us all into the world equal and alike…the only maxim of a free government ought to be to trust no man [kings included] to endanger public liberty.
John Adams, from his notes on an oration at Braintree, quoted in John Adams, by David McCullough, page 121.
On Being a History Geek
I took enough upper division history classes at UC Davis for a mini major in United States history. Our history has many heroes who did the hard work to build a free nation. They literally put their lives on the line for a free nation to be born.
Do you recollect the pensive and awful silence which pervaded the house when we were called up, one after another, to the table of the President of the Congress tosubscribe what was believed by many at that time to be our own death warrants?
Benjamin Rush, letter to John Adams, 1781, The Essential Wisdom of the Founding Fathers, edited by Carol Kelly-Gangi
We value our freedom from government intervention with our lives. Perhaps the most overlooked evidence of this national value is the Third Amendment to the US Constitution. Few people EVER hear mention of this Amendment, but it expressly forbids the quartering of soldiers in private homes. The Third Amendment expressly states:
No Soldier shall, in time of peace be quartered in any house, without the consent of the Owner, nor in time of war, but in a manner to be prescribed by law.
The United States simply has not quartered soldiers in private homes because of our Revolutionary experience from the British soldiers being unwanted house guests. There is barely any case law of the Third Amendment, simply because the US Army has not forced soldiers into the homes of citizens to be fed and housed. We don’t do that here.
The Third Amendment highlights one of our fundamental beliefs in country: to be free of an oppressive police state. This is paramount for anyone to have “life, liberty and the pursuit of happiness.” Moreover, the Third Amendment is part of the Bill of Rights creating a “penumbra of privacy” as cited in Griswold v. Connecticut, 381 U.S. 479, 484 (U.S. 1965).
The Third Amendment might be one of the forgotten amendments, but it certainly demonstrates our values of a free society.
On Service to Country
Every post is honorable in which a man can serve his country.
George Washington, Letter to Benedict Arnold, September 14, 1775, The Essential Wisdom of the Founding Fathers, edited by Carol Kelly-Gangi
Our country is free because of those willing to defend it.
I have many friends who serve in the military. I know many who serve the public trust as district attorneys, public defenders, county counsel and judges. To everyone who took an oath to uphold and defend the Constitution, thank you.
…and Third Amendment notwithstanding, there are very few Americans who would not be proud to invite someone serving in the military over to join in a 4th of July celebration.
A boy who grew up in abject poverty and became the President of the United States.
The man who went to the Republican Convention to nominate another man for President, only to get the nomination himself.
And stalked by an office seeker who murdered him.
President Garfield was one of the best men qualified for the office in US History. The country needed him, because the later half of the 19th Century is short on political heroes who stood on principle.
James Garfield was President for only 200 days.
Much of that time was spent dying.
The Destiny of the Republic
Candice Millard’s Destiny of the Republicis an amazing book on the life of President James Garfield.
Her analysis of Garfield’s rise to the Presidency and death from both an assassin’s bullet and his doctors is simply historical storytelling at its best.
Moreover, the accounting of Charles Guiteau’s trial is excellent, with a detailed summary of the insanity defense in the 19th Century.
After reading Destiny of the Republic, I reviewed the case law from Charles Guiteau trial and related legal issues.
Here are significant legal issues from Garfield’s assassination:
Presidential Succession
President Garfield’s death highlighted a huge gap in the Presidential Succession: There was no plan for who was in charge if the President was unable to fulfill his duties, but still alive. We have the 25th Amendment and Presidential Succession Act today, which explains how the Vice President can become the Acting President (or if the country is really having a bad day, the Speaker of the House on down to the Secretary of the Interior).
Garfield was shot on July 2, 1881. He did not die until September 19, 1881. That is a significant amount of time for “who exactly is in charge” for decisions that had to be made on matters of state.
Jurisdiction for A Presidential Assassin
President Garfield was shot in Washington, DC. He died in New Jersey. Justice Cox for the Supreme Court of the District of Columbia determined that the District of Columbia had jurisdiction to try Charles Guiteau for the President’s murder.
The Court held that DC was the proper venue, not where the President died as argued by Guiteau’s attorney Charles Reed, because “the crime was committed where the wound was inflicted.” United States v. Guiteau, 1 Mackey 498 (D.C. 1882). The Court explained:
The contention is, in this case, that murder can only be tried and punished in the county where it is committed; that death is an essential element in the crime, and that, as the death did not occur within this District, the crime of murder was not committed here, but, at most, an assault with intent to kill. The same reasoning will apply to the place where the death occurred. The mortal wound being an essential element of the crime, and this not having been inflicted in the same jurisdiction where the death occurred, it follows that murder was not committed there. The consequence of this doctrine is that, although murder most foul may be committed, yet, if by accident, or even by contrivance of the assassin himself, the victim be conveyed, before his death, over the territorial boundary of the jurisdiction where he was smitten, it becomes impossible to locate the murder, and its perpetrator secures immunity from the punishment due to this heinous crime.
///
A wound, not immediately fatal, is inflicted in this District. Until its consequences are ascertained, it cannot be determined whether the offense committed is a homicide or an attempt. But when death results from the wound, no matter where, it is ascertained that a homicide is committed. Everything of which the perpetrator was guilty was committed here. The crime consists in intentionally and unlawfully causing the death. Wherever the death may have occurred, it was caused here, by the fatal wound inflicted here. It is even a misnomer to speak of such an offense as having been begun here and completed elsewhere.
///
In this condition of affairs, I feel at liberty to adopt and announce the opinion which seems most to conform to common sense, and that is that the jurisdiction is complete where the fatal wound was inflicted.
United States v. Guiteau, 1 Mackey 563, 567-568, 584 (D.C. 1882).
Medical Malpractice
Charles Guiteau’s argued in his defense that Doctor Willard Bliss and the medical team killed President Garfield. Guiteau had a point, if you ignore the fact Bliss would have never treated Garfield but for Guiteau shooting the President. (See, Destiny of the Republic, Chapter 22).
Bliss did not believe in sterilizing medical equipment, explored Garfield’s wound without cleaning it and dominated the treatment of the President. This was also long before latex gloves and hand sanitizer.
Bliss was wrong. Arrogant. Ignorant. And he killed the President of the United States from his poor treatment.
Bliss’ arrogance was highlighted with his interaction with Alexander Graham Bell. Bell invented a medical metal detector specifically to find the bullet in the President. However, Bliss only let Bell scan the areas where Bliss thought the bullet was located.
Bliss’ treatment would make for an excellent civil case for medical malpractice, plus a possible criminal case for negligence. However, that would not be enough to give Guiteau a free pass for shooting James Garfield.
Bliss treated Garfield because Charles Guiteau planned to shoot President Garfield, purchased a gun for the purpose, practiced with said gun, stalked the President, and then shot Garfield in public with the intent to kill the President.
“But for” Guiteau’s actions, President Garfield would have never been under Bliss’ care for a gunshot wound.
A Fair Trial For a Very Public Crime
Jury Selection
Selecting an impartial jury for someone who murdered a President of the United States is no small task. It is a news story that is hard to miss.
Guiteau’s trial lasted from November 14, 1881 to January 25th, 1882. He was found guilty the same day. He was sentenced to be executed on June 30, 1882. United States v. Guiteau, 1 Mackey 498 (D.C. 1882).
How did the Court ensure Guiteau’s Constitutional right to a jury trial was fair? It’s not like they could simply move the trial to St. Thomas in the hopes of finding jurors who had not heard about Guiteau shooting Garfield (for the record, the United States did not purchase St. Thomas until 1917).
A 1893 opinion referenced the challenge of finding impartial jurors in both the Aaron Burr and Charles Guiteau trials. The Court explained:
The jury duty devolved upon the citizen is no more voluntary than his similar obligation to render military service. He can escape from neither upon the strength of his mere representation of his unfitness, and thus be allowed at his will to cast his obligation upon others, whose burden grows heavier by every such exemption. The duty of the examining authority, instead of ceasing when the citizen, in either case, has made his general claim to exemption, may more properly be said to have then really begun.
In the Burr trial, every one of the hundreds of persons summoned as jurors, with scarcely one exception, answered on his voir dire that he had formed an opinion. The attorneys for the United States could not have been far wrong when they expressed their belief that to obtain a jury in that case entirely free from all opinions as to the guilt or innocence of the prisoner was not possible, unless it should be dropped from Heaven, or be composed of hermits who had passed their lives immured in caves or hollow trees.
The same conditions appeared in the Guiteau trial.
But impartial jurors were finally obtained in each case, by a careful analysis by the court of the sources and extent of their alleged opinions. There must be few persons of intelligence in this country, who have not heard and participated in discussions as to the probabilities of the guilt of the person charged with the savage murder of her parents at Fall River a short time since; and atrocious crimes committed in even foreign countries, attract almost the same degree of attention here, and give rise to similar expressions of opinion, on the newspaper accounts of the facts or of coroners’ inquests. But as all sensible persons observe the reports vary in the different newspapers of the same day, and in successive issues of the same newspaper, it is impossible to believe such opinions can have a disqualifying effect upon the minds of men of average good sense. If this were so, the very lawyers who are employed to defend the accused and are on the alert to pronounce intelligent jurors disqualified, would find it their duty to decline service in a case they had thus necessarily prejudged.
Although the oath taken on the voir dire is to make true answers to such questions as may be asked by the court, the examination is often conducted in great part by counsel whose experience has taught them exactly what are the crucial points involved in the inquiry. Under such examinations, an ignorant person, appearing in court perhaps for the first time as a juror, with the limited vocabulary of the uneducated, may naturally assent to questions not fully understood; or by using technical terms in an inexact manner, may indicate the formation of disqualifying opinions; until a careful examination by the judge, the one person concerned in the inquiry who must be supposed to be entirely disinterested in any result except the attainment of justice to the prisoner and the community, may evince an impartiality fitting him to serve.
United States v. Barber, 1 Tuck. & Cl. 456, 462-464 (D.C. 1893) (Emphasis added).
Travel Costs for Witnesses
Getting across the United States costs money and takes time. Guiteau was broke. As such, the Defense made an application for the Court allowing fees for witnesses residing at a distance of more than one hundred miles from Washington testifying for the defense. United States v. Guiteau, 1 Mackey 585(May 22, 1882).
The application was made pursuant to section No. 839 of the Revised Statutes of the District, which stated, “In all criminal trials the Supreme Court, or the judge trying the case, may allow such number of witnesses on behalf of the defendant as may appear necessary, the fees thereof, with the costs of service, to be paid in the same manner as Government witnesses are paid.” Id.
The Court decided in chambers how many witnesses were to testify for the defense at the expense of the Government. US v. Guiteau, 1 Mackey 585(May 22, 1882).
The Insanity Defense
Guiteau plead to the Court that he was not guilty by reason of insanity, because God told him to kill President Garfield. Moreover, he was no longer insane because God was not talking to him (See, Destiny of the Republic, Chapter 22 for a beautifully detailed account of the trial).
And so began a very long trial on whether or not Charles Guiteau was insane that included 36 expert witnesses. Guiteau himself testified for two weeks.
The Court issued the following jury instruction on the insanity defense:
“If he is laboring under disease of his mental faculties–if that is a proper expression–to such an extent that he does not know what he is doing, or does not know that it is wrong, then he is wanting in that sound memory and discretion which makes a part of the definition of murder.”
US v Guiteau, 1 Mackey 498, at *550.
Justice James of the Supreme Court for the District of Columbia explained the insanity defense as follows:
Insanity is a defense on the very ground that it disables the accused from knowing that his act is wrong. The very essence of the inquiry is whether his insanity is such as to deprive him of that knowledge. If a witness is competent to give his opinion as to the mental condition of the accused, he is competent to state his opinion as to the degree of capacity, or of incapacity, by reason of disorder, and whether the disorder seemed to have reached such a degree as to deprive him of the knowledge of right and wrong. That capacity or incapacity is itself a question as to the extent of the disorder, if disorder exists, and is not a conclusion to be drawn from the existence of insanity.
US v Guiteau, 1 Mackey 498, at *546.
The Supreme Court of the District of Columbia found the witnesses who testified on the issue of sanity were competent to do so and thus no error in their testimony. Id.
Dr. Fordyce Barker was a Prosecution witness who answered the following question on direct examination:
“Is the habit of boasting of intimacy with people holding high position, and possessing influence and power, when the fact is otherwise, any evidence, in your judgment, as a scientist, of an insane delusion?”
Answer:
“It is not an evidence of a delusion of an insane person, because it is not the result of disease. It is a result of vanity and self-conceit and love of notoriety. These are vices and not diseases.”
US v Guiteau, 1 Mackey 498, at *546.
The Court explained the testimony was admissible, because the issue of shooting the President had been conceded by the Defendant. The doctor’s answer spoke only to the issue of sanity or insanity and not of guilt. Id.
Guiteau’s ex-wife also testified that she saw no evidence of Guiteau being of unsound mind. The ex-wife had been instructed by the court not to disclose any communications between husband and wife, which are protected. As she was only testifying to her opinion, not any communications, her testimony was admissible. US v Guiteau, 1 Mackey 498, at *547-549.
Scholars on the Rules of Evidence may still question this testimony, because the ex-wife’s opinions were based on marital communications. Apparently, the NSA is not the first to argue the “context over content” argument in court.
Other witnesses testified to fraudulent activity of Guiteau from the early and mid-1870s, after the Defense had introduced evidence of “insanity” that spanned Guiteau’s entire life. Guiteau had even testified on these events.
The Court held the rebuttal “sanity” evidence was admissible:
In this body of defensive evidence his moral nature and traits had been presented, as a means of showing that acts done by him must be accounted for by a conclusion of insanity. It was competent to show, in rebuttal, that the grounds on which this inference of insanity was based, did not exist, and to do this by exhibiting particular acts and conduct of the defendant, contemporaneous with the history produced on his part, which tended to disprove the existence of those grounds. If a conclusion might be drawn from his moral nature that his acts must be insane, it was relevant and proper to show that his real moral nature was one which did not call for such an explanation.
After comparing the evidence, as to particular acts, offered on both sides, we are of opinion that the evidence in rebuttal was responsive to the evidence in defense, and was admissible. It must be remembered that the killing of the deceased was admitted; the implication of malice had already been made when the prosecution rested their case. The issue now was whether the defendant was responsible for that act by reason of insanity. The application of his improper acts was limited, therefore, to that issue. For these reasons we find no error in the admission of the facts referred to, and for the same reasons we find none in that part of the charge to the jury which related to this point.
US v Guiteau, 1 Mackey 498, at *549.
The Insanity Defense has never been popular with the public. Cases frequently are tried in the press before they are tried in a courtroom. This causes public outcry when press driven results are not reached by the jury. However, it is rare for the public to actually listen to an entire trial, watch each witness or understand the jury instructions. As one Court stated, “As to the reasonableness of a defense being mounted in this case, we need look no farther than the “Twinkie” defense asserted in the Moscone-Milk murder case for an example of what may appear reasonable to a jury.” People v. Burns, 184 Cal. App. 3d 203 (Cal. App. 2d Dist. 1985)
The Insanity Defense had a substantial amount of scorn from the Prosecution in the trial of Sirhan Sirhan for the murder of Robert Kennedy. The closing argument by World War II hero and later California Court of Appeals Justice Lynn Compton stated to the jury that if they didn’t buy the psychiatric testimony, “then there’s nothing left but plain old cold-blooded first-degree murder.”
Despite the hostility toward the Insanity Defense, Courts have described the Insanity Defense over the years with effectively the same intent:
[The] insanity defense, which is to save from criminal conviction one who lacks responsibility for his unlawful acts, has not been achieved on this record by the introduction of sufficient evidence to make that defense a substantial issue in the determination of appellant’s guilt or innocence.
United States v. Collins, 433 F.2d 550, 556 (D.C. Cir. 1970).
The California Jury Instructions state the following on the determining whether a Defendant is legally insane:
The defendant was legally insane if:
1. When (he/she) committed the crime[s], (he/she) had a mental disease or defect;
AND
2. Because of that disease or defect, (he/she) was incapable of knowing or understanding the nature and quality of (his/her) act or was incapable of knowing or understanding that (his/her) act was morally or legally wrong.
None of the following qualify as a mental disease or defect for purposes of an insanity defense: personality disorder, adjustment disorder, seizure disorder, or an abnormality of personality or character made apparent only by a series of criminal or antisocial acts.
2-3400 CALCRIM 3450.
No one wants to see the guilty go free. No one wants to see the innocent convicted of a crime they were not responsible for committing. This is what makes the Insanity Defense a challenge, because rational human beings should not engage in the unlawful killing of another human being. When someone is murdered, we as a society want justice. Many have viewed the Insanity Defense as a way of escaping justice, when its intent is to ensure that those convicted of a crime actually had the criminal intent to do so.
Charles Guiteau may have had several sever personality disorders and delusions of grandeur. Was he insane? Some expects thought yes and some no. In the case of the jury, they saw a man who deliberately planned to murder President James Garfield.
Would the same result be reached today? I think so because of the substantial premeditated planning, target practice and stalking by Guiteau to kill President Garfield. Guiteau knew his actions would result in the death of James Garfield.
With that said, there would be substantial arguments over whether Guiteau had a disease that diminished his capacity to know right from wrong. Expert witnesses would argue that a personality disorder with imagined self-importance is not a disease under the law. However, it is hard to predict if Guiteau would have been tried like Sirhan Sirhan or not have been competent to stand trial like John Hinckley.
Guiteau & Defamation
History views Presidential assassins with a high degree of scorn.
In 1887, a Plaintiff sued over the Defendant calling him a “crank.” Since Garfield’s assassination, the word “crank” had obtained a meaning referring to Guiteau that meant a “crack-brained and murderously inclined person” from the media. Walker v. Tribune Co., 29 F. 827, 829 (C.C.D. Ill. 1887).
The Court granted a demur for the Defendant, citing Ogilvie’s Imperial Dictionary (1885 publication), which defined “crank” as “Some strange action, caused by a twist of judgment; a caprice; a whim; a crotchet; a vagary. Violent of temper; subject to sudden cranks. Carlyle.” Id.
What Garfield Means to the United States
President Garfield is in second place for the shortest Presidency in US History. Garfield was one of the few successful Presidential dark horse candidates to get nominated by his party, joining the likes of James K Polk.
Why is he relevant today?
James Garfield represented everything honorable about the American Experience. The poor child with a brilliant mind. The young man who went to college and swept the floors, only to ultimately become president of the school. The daring Civil War General who knew the value of human life. The good husband and father.
America will always need people like James Garfield. A good man who did not seek higher office, but was sought out for it. We need the heroes who are willing to do the hard work to make our country better. That is why we should remember James Garfield.
Because few Americans are greater symbols of resolution, loyalty to country and the courage to overcome defeat.
Moreover, John Quincy Adams is a reminder of how one lawyer can make a difference in the United States.
JQA suffered a massive stroke on the Floor of the House of Representatives on February 21, 1848.
He served in the House from 1830 to his death on February 23, 1848. He is the only American President to be elected and serve in Congress after his Presidency. [While President Andrew John was elected to the Senate by the Redeemer Government in Tennessee, he died before taking the oath of office.] During this time, President John Quincy Adams earned the nickname Old Man Eloquent.
Never before in our country’s history had there been a larger funeral for a former President of the United States. Statesmen and a grieving procession several miles long accompanied Adams’ body back to Quincy, Massachusetts. In true government fashion, Adams’ coffin was several inches too wide for the crypt.
Only one other state funeral would have a larger outpouring of national grief in the 19th Century. It was for an attorney from Illinois who served one term in Congress. His name was Lincoln.
JQA grew up at the founding of the United States, thanks in large part to his father’s determination to see an independent United States of America. A boy who became an ambassador (and the only family where the grandfather, father and grandson each served as Ambassador to England); the US Senator who lost his office because of his support for the Embargo Act of 1807; the statesman who helped negotiate the end of the War of 1812; the Secretary of State who defined 19th Century foreign policy with the Monroe Doctrine; and a man elected President of the United States by the House after a disputed election with four candidates.
President John Quincy Adams was the first “modern” President who did not wear a wig, worn clothes modern for the time and had what would be considered a progressive administration. He wanted roads, a Naval Academy and what would be called the Smithsonian. He also wrote in his diary daily, even go so far to teach himself to write left-handed when his right hand became tired. He also swam nude in the Potomac to exercise…which would not go over well today.
Unfortunately, his Presidency was a total failure. Congress dug in and opposed him on every issue, biding their time for Andrew Jackson.
Adams lost the election of 1828. Many historians joke it was probably more honorable to have lost than won that race. During the campaign, Jackson’s people accused Adams as having supplied the Russian Tsar with American virgins while Adams was Commissioner to Russia (which was not true); the Adams camp produced the Coffin Hand Bill, which accused Jackson of being a bigamist, having killed men in duels and being illiterate. All of which were true about Jackson.
Jackson could also spit blood at will on people he argued with, thanks to a dueling injury.
To be fair, Jackson’s wife did not have a proper divorce from her first husband. The stress of the election also killed her.
Adams was one of two Presidents not to attend his successor’s Inauguration. The other was John Adams.
How does a man totally defeated from the Presidency have the courage to run for the House of Representatives? How does he serve with honor and dedication until his dying day? Where does that courage come from?
Congressman John Quincy Adams fought tooth and nail against the Gag Rule, the practice of tabling without reading petitions on slavery. Adams called the Gag Rule exactly what it was: an outright violation of the First Amendment, denying citizens the right to petition their government for grievances. Adams was once greeted in Ohio for his defense of the First Amendment with a banner declaring he was the “Defender of the Rights of Man.”
In time, John Quincy Adams’ allies grew. One was Joshua R Giddings. Congressman Giddings also took up many of Adams’ causes. Like most Congressmen of the time, many lived in boarding houses and ate together. Adams and Giddings lived at the same boarding. Giddings roommate was Abraham Lincoln.
So, why a bust of John Quincy Adams? Because I admire a lawyer who lived, fought and died in order to make America better.
Presidential Elections make me think of one thing:
The number of fictional US Presidents in 24.
The fictional series 24 covered 8 days over slightly over 14 years. In that time there were 9 Presidents.
Two of them served full terms.
That is like having Presidents Lyndon Johnson, Richard Nixon, Gerald Ford, Jimmy Carter, Ronald Reagan, George H.W. Bush, William Clinton, George W Bush and Barack Obama in 14 years.
Imagine that many Presidents since Clinton’s last two years in office until present day.
The White House having such a fluid number of Presidents would probably put the country on the verge of a nervous breakdown. The United States has never had that level of instability in leadership (And probably a lot of FBI, CIA & Secret Service Directors fired for “losing another one”).
Moreover, seeking the Presidency looks like a bad life choice, given that John Keeler and Wayne Palmer had both assassination attempts and could not complete their term of office (not clear if they actually died).
Or fictional former President David Palmer catching a bullet for preparing to expose the treasonous actions of President Charles Logan (Never mind the legal issues of Jack just executing Palmer’s killer).
One 4 Year Term: Harry Barnes (Never seen and President on Day 1, so he was at the end of his term)
One 4 Year Term: David Palmer (Acting President James Prescott for a few hours)
One 4 Year Term: John Keeler, Charles Logan (Vice President who becomes President), Hal Gardner (Confirmed as Vice President and becomes President after Logan had David Palmer Assassinated)
One 4 Year Term: Wayne Palmer (for a few months) and Noah Daniels
Partial Term: Allison Taylor (Resigned, who would be followed by her VP)
How could this happen under the US Constitution? Under Section 1, Article II of the Constitution, a US President’s term of office is four years. Pursuant to the 22 Amendment to the US Constitution, a President may only serve two terms. Additionally, no person (the Vice President or if things were really bad, former Speaker of the House), who had acted as President for more than two years of a term, may only be elected to one term themselves. However, the 25th Amendment, followed by the Presidential Succession Act of 1947, are our keys to understanding these hyper-accelerated Presidencies.
The 25th Amendment to the United States Constitution:
1: In case of the removal of the President from office or of his death or resignation, the Vice President shall become President.
2: Whenever there is a vacancy in the office of the Vice President, the President shall nominate a Vice President who shall take office upon confirmation by a majority vote of both Houses of Congress.
3: Whenever the President transmits to the President pro tempore of the Senate and the Speaker of the House of Representatives his written declaration that he is unable to discharge the powers and duties of his office, and until he transmits to them a written declaration to the contrary, such powers and duties shall be discharged by the Vice President as Acting President.
4: Whenever the Vice President and a majority of either the principal officers of the executive departments or of such other body as Congress may by law provide, transmit to the President pro tempore of the Senate and the Speaker of the House of Representatives their written declaration that the President is unable to discharge the powers and duties of his office, the Vice President shall immediately assume the powers and duties of the office as Acting President.
Thereafter, when the President transmits to the President pro tempore of the Senate and the Speaker of the House of Representatives his written declaration that no inability exists, he shall resume the powers and duties of his office unless the Vice President and a majority of either the principal officers of the executive department or of such other body as Congress may by law provide, transmit within four days to the President pro tempore of the Senate and the Speaker of the House of Representatives their written declaration that the President is unable to discharge the powers and duties of his office. Thereupon Congress shall decide the issue, assembling within forty-eight hours for that purpose if not in session. If the Congress, within twenty-one days after receipt of the latter written declaration, or, if Congress is not in session, within twenty-one days after Congress is required to assemble, determines by two-thirds vote of both Houses that the President is unable to discharge the powers and duties of his office, the Vice President shall continue to discharge the same as Acting President; otherwise, the President shall resume the powers and duties of his office.
The line of Presidential succession is defined under the Presidential Succession Act of 1947, which states, in relevant part:
(1) If, by reason of death, resignation, removal from office, inability, or failure to qualify, there is neither a President nor Vice President to discharge the powers and duties of the office of President, then the Speaker of the House of Representatives shall, upon his resignation as Speaker and as Representative in Congress, act as President.
(2) The same rule shall apply in the case of the death, resignation, removal from office, or inability of an individual acting as President under this subsection.
(b) If, at the time when under subsection (a) of this section a Speaker is to begin the discharge of the powers and duties of the office of President, there is no Speaker, or the Speaker fails to qualify as Acting President, then the President pro tempore of the Senate shall, upon his resignation as President pro tempore and as Senator, act as President.
c) An individual acting as President under subsection (a) or subsection (b) of this section shall continue to act until the expiration of the then current Presidential term, except that—
(1) if his discharge of the powers and duties of the office is founded in whole or in part on the failure of both the President-elect and the Vice-President-elect to qualify, then he shall act only until a President or Vice President qualifies; and
(2) if his discharge of the powers and duties of the office is founded in whole or in part on the inability of the President or Vice President, then he shall act only until the removal of the disability of one of such individuals.
d)
(1) If, by reason of death, resignation, removal from office, inability, or failure to qualify, there is no President pro tempore to act as President under subsection (b) of this section, then the officer of the United States who is highest on the following list, and who is not under disability to discharge the powers and duties of the office of President shall act as President: Secretary of State, Secretary of the Treasury, Secretary of Defense, Attorney General, Secretary of the Interior, Secretary of Agriculture, Secretary of Commerce, Secretary of Labor, Secretary of Health and Human Services, Secretary of Housing and Urban Development, Secretary of Transportation, Secretary of Energy, Secretary of Education, Secretary of Veterans Affairs, Secretary of Homeland Security.
(2) An individual acting as President under this subsection shall continue so to do until the expiration of the then current Presidential term, but not after a qualified and prior-entitled individual is able to act, except that the removal of the disability of an individual higher on the list contained in paragraph (1) of this subsection or the ability to qualify on the part of an individual higher on such list shall not terminate his service.
3) The taking of the oath of office by an individual specified in the list in paragraph (1) of this subsection shall be held to constitute his resignation from the office by virtue of the holding of which he qualifies to act as President.
Luckily, US History is rather dull compared to 24. The 25th Amendment has only been applied a handful of times, such as in President George W Bush’s first and second terms when he had two different medical procedures, making Vice President Cheney the Acting President for a few hours each time.
The big example of the Constitution getting a workout was after Richard Nixon resigned, making Vice President Ford the new President. Ford has the distinction of being the only person who was not elected President or Vice President who ultimately became Commander-in-Chief. Throw in Nelson Rockefeller as Vice President, and from August 1974 to January 1977, neither the President or Vice President had been popularly elected.
There is one odd footnote on Presidential Succession from the 19th Century: On March 4, 1849, President-Elect Zachary Taylor did not get sworn in, because it was a Sunday, thus took the oath of office on March 5 (Until Truman, Presidential terms ended on March 4).
Technically, President James K. Polk’s term ended at noon on March 4. Small problem: Taylor had not yet taken the oath.
The United States Senate website has the odd story that the then Senate president pro tempore, David Atchison, claimed he technically was President for 24 hours (arguably Polk’s term was extended one day). There are problems with “President Atchison’s” claim, because technically Atchison’s term as president pro tempore also should have ended on March 4 (Let alone Atchison taking the oath of office). However, he claimed that not only was he President of the United States for 24 hours, he had “the honestest administration this country ever had.”
In the final analysis, what can we learn from 24? First, while the United States does not go through Presidents like they are wearing Red Shirts, the Constitution does provide for many contingencies if a nightmare situation happens. Or a President needs a root canal.
Second, while the fictional Jack Bauer was great at fighting terrorists, he was no Clint Eastwood when it came to being In the Line of Fire.
