Category: Uncategorized

In Glossip v. Okla., The Supremes Seek More Counsel: Amicus Invited…

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This is a death penalty case, where the officials of Oklahoma now oppose the execution — due to clear prosecutorial misconduct at trial, that the state itself concedes was likely “outcome determinative”.

The only forces aligned against granting a new trial here are — yep, you guessed it! — Thomas, Alito and probably Kavanaugh.

The three think that even when we get it wrong — “finality” (that is, killing a human, promptly) is more important than actual innocence. Than… restorative… justice.

So the other six seek ever more amicus briefs today, to try to convince the three… that their views are deeply… flawed.

Do stay tuned.

Texas Gets “Schooled” In Fifth Cir. — Or, “The First Rule Of Holes…” Here Applies.

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Ahem. Confidential Note, to Gov. Abbott — when you’re in one… stop digging.

This (below) is a “hole” of the Governor’s own making. A lawless, and barbarous one.

He is lacerating children and their parents — asylum seekers, almost to a person. What sort of monster thinks that is lawful — let alone… a moral approach, to the problems he claims to face?

The law of the United States, and a 1848 Treaty between our nation, and the nation of Mexico… prevent this cruel course of action, by anyone — and certainly not by the governor of a rogue state (who had sworn an oath to “support the United States”).

Here’s the latest — on why Abbott and Texas will lose in the Fifth Circuit, from the able AUSAs’ appellate offices, overnight (and a bit of it).

…The circumstances of this case aptly demonstrate why a district court is free to proceed to the merits while a preliminary injunction appeal is pending. After the district court entered the preliminary injunction, the United States filed an amended complaint that pleads two claims. Only the first claim, alleging that Texas violated Section 10 of the RHA, is the subject of the preliminary injunction and this Court’s review in Texas’s appeal. The second claim in the amended complaint alleges that Texas’s installation of the barrier in the Rio Grande is contrary to Article VII of the 1848 Treaty of Guadalupe Hidalgo, which prohibits “construct[ing] any work that may impede or interrupt, in whole or in part,” the “free and common” “navigation” of the Rio Grande. See generally ECF 60 ¶¶ 17-21, 42-45 (First Amended Complaint); ECF 63 at 10-20 (United States’ opposition to Texas’s motion to dismiss). That distinct claim was not at issue in the preliminary injunction proceedings either in the district court or on appeal….

Even if this Court’s review of the preliminary injunction appeal were to resolve any purely legal issues as to the RHA claim (which it would not for the reasons discussed in the next paragraph), the resolution of the RHA claim will by no means resolve the treaty claim. The treaty precludes either country from impeding the free navigation of any part of the river without the other country’s consent. ECF 63 at 10. See id. at 17 (noting Article VII protects right of navigation across the river). Furthermore, the treaty claim does not require finding that any segment of the Rio Grande is commercially navigable, as “navigation” under the treaty’s terms includes any navigation and is not limited to just commercial navigation. Id. at 17-18.

Notably, Texas has not disputed that the treaty’s definition of “navigation” is broader than the RHA’s. See ECF 65 at 1-6 (Texas’s reply in support of motion to dismiss). Thus, although the treaty claim arises from the same factual occurrence — Texas’s unilateral and unauthorized placement of the barrier in the Rio Grande — the treaty claim is legally distinct from the RHA claim, and its success does not depend on the RHA claim….

Who are these feckless would-be dotards? And do they really think they can run out the clock — and bank on a Tangerine win in November, presumably to pardon them (from charges of crimes against humanity, among others… and as of Wednesday, now likely including inciting insurrection by ignoring a final US S.Ct. order)?

Wow. Out.

Ingenuity Has Crashed On Mars, On Its 73rd Flight — Snapping A Rotor… Likely Into The Surface.

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She had far exceeded expectations — 72 flights, when designed to only make… five. So it’s been a night of tough news, overall.

Here is the head of NASA, to explain. We salute the little chopper that… could.

…NASA Administrator Bill Nelson has announced that the Ingenuity Mars Helicopter has come to an end. The Ingenuity Mars Helicopter made history by achieving the first powered, controlled flight on another planet on April 19, 2021. Despite initial plans for up to five flights, the helicopter has exceeded expectations and executed an impressive 72 flights on the Red Planet….

नमस्ते

[U: He Struggled For Several Minutes. But He Is Now Dead.] Two Dissents, On Execution By Nitrogen Hypoxia — A Procedure Widely Forbidden To Be Used… To Euthanize… Animals.

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Update — local news outlets offer this: …The execution took about 22 minutes, and Smith appeared to remain conscious for several minutes. For at least two minutes, he appeared to shake and writhe on the gurney, sometimes pulling against the restraints. That was followed by several minutes of heavy breathing, until breathing was no longer perceptible….

In a final statement, Smith said: “Tonight Alabama causes humanity to take a step backwards…. I’m leaving with love, peace and light….” End, update.

Do read both of these dissents. We as a nation are better than this. Better than refusing to kill animals the way Alabama will kill Mr. Smith tonight due to documented cruelty to… the animal. Damn.

Justice Sotomayor; and Justices Kagan and Jackson:

…Smith had warned repeatedly that Alabama would struggle and likely fail to complete its lethal injection in light of a “pattern of the State’s difficulties in establishing venous access.” 2023 WL 4353143, *7 (MD Ala., July 5, 2023). This Court did not listen. It instead vacated a stay of execution without explanation, over three noted dissents. As a result, Smith’s arms were strapped over his head and he watched as his executioners repeatedly stabbed needles into his hands, arms, and collarbone, trying to access his veins. It took an hour and half after this Court vacated the stay before Alabama called off the execution.

Since that day, Smith has suffered from posttraumatic stress. Reliving those hours strapped to the gurney, his medical records confirm worsening bouts of nausea and vomiting over the past few weeks. See Second Supp. Decl. of Katherine Porterfield in No. 2:23–cv–00656 (MD Ala., Jan. 23, 2024), ECF Doc. 87–5, p. 3, ¶¶5–6. Those symptoms have been resistant to prescribed medications. He is therefore likely to vomit during the execution as a combined result of this posttraumatic stress and oxygen deprivation.

Smith asks this Court to stay his execution. He argues that Alabama’s untested execution protocol will likely subject him to an unconstitutional risk of cruel and unusual punishment. According to one of Smith’s experts, “there is a substantial and serious risk that Mr. Smith will experience nausea and vomiting during his execution,” thus “asphyxiating—that is, choking to death — on his own vomit” before he eventually passes out from hypoxia. Id., at 3–4,¶7.

Further, Alabama believes that an air-tight seal is not needed on the mask. Smith therefore has raised the substantial risk that oxygen will infiltrate the mask and lead to a persistent vegetative state, stroke, or suffocation, superadding pain and prolonging Smith’s death….

Twice now this Court has ignored Smith’s warning that Alabama will subject him to an unconstitutional risk of pain. The first time, Smith’s predictions came true. He “survived to describe the intense fear and pain [he] experienced during Alabama’s tortuous attempts to execute [him].” Barber, 600 U. S., at ___ (SOTOMAYOR, J., dissenting from denial of application for stay). This time, he predicts that Alabama’s protocol will cause him to suffocate and choke to death on his own vomit. I sincerely hope that he is not proven correct a second time.

With deep sadness, but commitment to the Eighth Amendment’s protection against cruel and unusual punishment, I respectfully dissent….

This is all… deplorable. Out.

नमस्ते

The Able USDC Judge Ezra Again Faults State Of Texas Agents — For Filing MORE False Pleadings — In The Fifth Circuit.

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This is astonishing: a sitting federal judge is (AGAIN!) correcting Texas’s lies, on the record, to the Fifth Circuit, by a supplemental order tonight. [BTW, Hinderaker should carefully consider what it is he wishes for.]

The able USDC Judge’s supplemental order, of this evening… reads:

…Texas filed its emergency motion to stay to the Fifth Circuit at 5:19 PM CST on January 24, 2024, stating, “[t]he district court, however, has not ruled on Texas’s motion.” Opposed Motion to Stay Order, USA v. Abbott, No. 23-50632 (Jan. 24, 2024) (Dkt. # 124).

At no point did this Court say its order on Texas’s Emergency Motion would be issued before the end of banking hours on January 24, 2024. This Court did not receive the United States’ Expedited Opposition until after 2:00PM CST on January 23, 2024, thus preventing this Court from beginning its review of both parties’ papers until late on the afternoon January 23, 2024. Given that Texas filed its own Motion to Stay near midnight, the Court believed the State would anticipate that the Court would not enjoy the luxury of keeping standard bankers’ hours. This Court’s order was docketed and the parties noticed at 6:00 PM CST on the 24th of January 2024, well within the time frame the Court indicated in its earlier order.

This Court extended the State’s deadline to disclose experts to January 26, 2024, specifically to give the State the opportunity to develop a response of its own and to eliminate its need to file an appeal to the Fifth Circuit before seeing the Court’s order upon which that appeal was based. Given that the State’s [razor wire barrier] is still in the middle of the Rio Grand River, where it was originally placed, there was no reason the State could not wait an extra hour before filing its appeal. As it was, the State gave this Court and the United States virtually no time to get their respective filings on record….

It is clear that Texas thinks it is… a nation, unto itself. Perhaps it is time… to let them find out just how little they matter to the other 49. How much they actually take — without giving back. How their lack of any income tax would doom them, if they didn’t rely on the federal handouts for health care and school lunches and roads and bridges… so heavily.

And how (we all know!) they couldn’t defend their own border for 45 minutes, with the bit of law enforcement they do have.

Be careful what you boys all wish for there, Hinderaker — we just might oughta’ vote to let you… have it.

The Governor will starve, if required to pay market rate, plus import duties — on all California fruits and grains and wine (and all filmed entertainment) — and avocados. And corn, from Iowa and Illinois, to feed those longhorns. Idiots. Heh.

Damn.

[U: Hinderaker Advocates For… Insurrection] In Which Gov. Abbott Writes A Quite Silly — And Sad — Letter. Thinks He Is The Final Arbiter Of The US Constitution. He Is Not.

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Updated 01.25.2024 @ 9 pm EST: Now Hinderaker openly suggests a final US Supreme Court order has no force or effect. He writes “The battle has been joined. Let’s fight it out….” And three paragraphs above that, he admits that the Supreme Court has decided “the feds are in control“.

In my opinion, his language veers dangerously close to… “fight like hell!” on J6. There, the Veep was already certifying a final election result, as the Tangerine Dotard urged a mob to hang him. Here, Hinderaker, and the Red MAGA Governors, are urging defiance of the Supremes. There is no other way to read his. [Shades of Gov. George Wallace, in Alabama, anyone?] Charming. He (and earlier, Steve): insurrectionists now. End update.

[Original Dateline: 01.24.2024 @ 5 pm EST:] Stevie Hayward just posted Texas Gov. Abbott’s “MAGA insurrectionist’s manifesto” letter of today.

It is all sad beyond words — in the level of misunderstanding (in his head) about how our system of ordered liberty — and federalism… works.

Mr. Abbott seems (like Tangerine, before him) unable to grasp that, after Marbury v. Madison (i.e., for over two centuries now), when the United States Supreme Court rules on a matter of federal law… that answer is both final, and definitive. Unless and until the Congress changes the law… Gov. Abbott is sworn by oath to uphold and defend the Supremes’ ruling here.

That he does not do, today. He threatens a Gov. Geo. Wallace moment — then at the University of Alabama doors — now, in Shelby Park, Texas.

He may find his men under… arrest, and charged with obstruction. But you know both he and AG Paxton are too big a pair of cowards, to be there in person. To be sure, though, they may be charged (just like Tangerine was, after J6), after the fact — if his Rangers impede the DHS or the CBP agents, in any manner now.

Out. What a bunch of putzes.

Switching It Up A Bit: We Will Look At “The Littler Guys, First” — Here At Year End — On Lobbying Disclosures…

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After the death penalty one, below — I’ll run a palate cleanser… on some of the drier, mid major year 2023 lobby spend data. For the full year, Baxter spent $1.54 million; Abbott’s spend was over double that, at $3.86 million.

Here is how smaller Baxter (in blue) used its Q4 dollars, with its full year imaged (on a quarterly basis), as against slightly larger Abbott. We will drop Abbott’s more detailed Q4 spend (in green) below Baxter’s:

…Issues related to pharmaceutical pricing; Legislation to incentivize new technology for innovation in home dialysis (no current bill number)….

Issues relating to drug pricing, home dialysis expansion, ESRD reimbursement for Hemodialysis, 340B Drug pricing, device sterilization. Issues relating to safe mobility and issues relating to diabetic retinopathy. Issues relating to pandemic all-hazards preparedness act. H. Res. 550 and H.R. 4421. Issues related to artificial intelligence in healthcare….

Issues related to increasing funding for Strategic National Stockpile. Labor, Health, and Human Services appropriations….

Taxation of multinational companies. Monitor tax reform proposal relating to corporate tax policies….

And… at Abbott Labs:

S. 2477/H.R. 1770 Equitable Community Access to Pharmacist Services Act. S. 2922 Advancing Research for Chronic Pain Act of 2023. H.R. 2369 Verifying Accurate Leading-edge IVCT Development (VALID) Act of 2021. Proposals related to sterilization of medical devices. Proposals related to the President’s Emergency Plan for AIDS Relief (PEPFAR). Proposals related to digital health technologies and innovations. Proposals related to Department of Defense coverage of continuous glucose monitors. Proposals to advance policies related to effective pain management. Proposals related to testing for malaria….

S. 1000/H.R. 1835 Saving Access to Laboratory Services Act. H.R.3674 Providing Relief and Stability for Medicare Patients Act of 2023. Proposals regarding PAMA regulations and changes to modernize and update the Clinical Laboratory Fee Schedule. Proposals related to Medicare coverage of continuous glucose monitors. Proposals related to diagnostic testing coverage….

Proposals related to U.S. global health programs and pandemic preparedness. Proposals to advance global virus surveillance. Proposals related to preserving critical medical supply chains. Proposals regarding infant and child nutrition marketing….

Proposals regarding the implementation and modernization of the WIC program. Proposals related to access to infant formula….

Proposals related to VA coverage of continuous glucose monitors….

Public Law 115-97 The Tax Cuts and Jobs Act. Public Law 117-169 Inflation Reduction Act of 2022. Proposals to reform domestic and international tax structures….

H.R. 3108 Medical Nutrition Therapy Act of 2021….

Proposals related to the shutdown of the United States Government….

Proposals related to third party litigation reform….

Now you know — but pretty discouraged by the Alabama ruling, from Thomas. Onward — just the same.

नमस्ते

Tonight, Alabama Is Likely To Use Nitrogen To Suffocate An Admitted, And Convicted Murderer To Death. That’s… Barbarian.

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Justice Thomas’ order removing the last barrier to this cruel form of execution is… here. We detailed the prior efforts of Alabama officials to find a vein, to inject this very same elderly inmate with poisons. This is the “solution” to that “problem” — according to Alabama. Damn.

To be certain, I understand the Code of Hammurabi-style theater — at play here.

It just strikes me as beneath… a society of ordered liberty.

So, we renew our opposition to the death penalty in all cases — and particularly here, where animal models (mice and rats) suggest that the inmate will struggle violently for several minutes, when he can no longer get oxygen, as his lungs slowly, cruelly, fill with the tissue killing nitrogen gas. [If he holds his breath long enough, this could take 20 to 30 minutes before he fully suffocates, struggling the whole while. But that may well be the intention of Alabama.]

All this leads to, in Hammurabi’s Code — is a land of the… blind — “as eyes — for eyes… do not restore sight to the dead“. Out.

नमस्ते