Over the past several months, I have received reports from prosecutors and defense attorneys (as well as some judges), and have seen it in action with my own eyes, of the complete incompetence and unprofessional behavior of New York County Criminal Court Clerks, whose office is situated next to arraignments (AR-3) on 100 Centre Street. In my years as a reporter, I have always tried to avoid sweeping generalizations about a class of people, because often sweeping generalizations neglect the achievements of certain individuals that seemingly fall into the targeted class by mere presence only. But, in the case of New York County (Manhattan) criminal court clerks inside the office next to arraignments, the “sweeping generalization” that they are overpaid, incompetent, and completely unprofessional holds true to every single one of them.

The phenomenon is quite interesting. I have spoken and seen in action other criminal court clerks in other parts. This post certainly does not apply to them at all. Before I get any hate mail or calls for a retraction, please note that this post applies specifically to the criminal court clerks working inside AR-3 and who are located in the office next to AR-3.

From what has been reported to me and what I have seen, AR-3 clerks are allergic to any semblance of work. Even when judges ask them a question — much less a prosecutor or a defense attorney — they respond with disgust with such amazing and reliable consistency. These criminal court clerks, while they read the newspaper on their desks in AR-3, enjoy making jokes about defense attorneys, prosecutors, and judges with such volume that you can hear it in the audience, even without having to strain. Apparently, and what seems hard to understand, is that the majority of defense attorneys, prosecutors, and judges just give these clerks an annoyed look, in much the same way you would look at a roach or an ant in your kitchen. It’s likely because of the attorneys’ acquiescence that these AR-3 clerks are continuing with their completely unprofessional behavior.

To top that off, it appears from my observations and from reports from members of the bar, that their work day seems to end at around 1:30 p.m. Any questions, inquiries, or requests for work after this time are met with animosity and shakes of the head. For a City that is encountering some budget issues, I would suggest that they are paid from 9:30-1:30 only, because that is the only time they will even consider doing substantive work that doesn’t interfere with their reading of the NY Post or Daily News.

As a reporter trying to get information about cases, you can then only imagine the animosity I receive. Last week, at about 4:00, in AR-3, when I asked a clerk (he wore glasses, had slightly receding brownish hair, and a round face) about when a particular defendant would be arraigned, I was met with these words, “Why don’t you go outside, go on google, and find out for yourself. Don’t waste my time. You are inconsiderate. You have no sense of time.” He then looked at the clock, sauntered to his empty desk, and continued reading his paper. Fortunately, a court officer provided me with the information I was looking for, before stating, “Don’t worry about that guy. They’re ALL like that.”

Are AR-3 clerks’ job that horrible? Indeed, the justice system often functions at the lowest common denominator. Clerks, who work for the court and for the judge to ensure that paperwork is docketed and processed correctly, are unfortunately AR-3’s lowest common denominator.

They all should be removed and replaced with professional clerks who have some semblance of respect for other people.

You may have read the article in the New York times today about the man who escaped his holding cell by simply walking out of the 100 Centre Street criminal courthouse wearing a three-piece suit.  Ronald Tackman, who has been in and out of prison most of his life and has had numerous brushes with the law, was in New York Supreme Court from Riker’s Island on a felony robbery charge.  He was dressed in a three-piece suit while in his holding cell and a correction officer mistakenly let him out of his cell, believing that Ronald Tackman was an attorney.  More specifically, the corrections officer saw Tackman, assumed he was an attorney, and asked Taskman, in sum and substance, “What are you doing in the cell, counselor?”

Interestingly, according to the above-described New York Times article, “[t]he escape [ ] left correction officials scratching their heads for answers as to how a man who had been listed in the department’s files as an escape risk was essentially able to walk out the door to freedom.”

The answer is pretty simple:  Ronald Tackman was white. 

If Mr. Tackman was anything other than white, the likelihood of this event happening would certainly be next to nil.

For anyone who hasn’t been to 100 Centre Street in New York City, I suggest you go and see the dynamic going on.  Go to AR-3, which is the felony arraignment part, Part N or Part F, which are Criminal Court parts before a case heads to Supreme Court, or any of the Supreme Court Parts, like Part 22 or Part 23.  You’ll immediately notice that the majority, if not all, of the defendants are minorities.  Further, you will also immediately notice that the majority, if not all, of the attorneys representing these defendants are white.  And, add to that, the majority, if not all of the Corrections Officers, are white as well.  And, one final thing if it already isn’t obvious:  the majority if not all of the judges are white.

Is it any wonder, then, that a hapless Department of Corrections Officer “mistakenly” believed that an older white gentleman in a three-piece suit standing alone in a holding cell was actually an attorney?

The Department of Corrections will undoubtedly claim, after a “thorough investigation,” that the Officer actions were outside of “protocol” – suggesting that the error by the officer was merely an aberrant act, as opposed to the product of a deep rooted institutional racism.

Roman Polanski should be sentenced.  Plain and simple. 

Although some countries have attempted to identify Polanski as the “victim,” not to mention Whoopi Goldberg’s outlandish statement that Polanski’s actions with the 13-year-old girl did not constitute “rape rape,” let’s not forget the facts of Polanski’s case, for which he knowingly and voluntarily pled guilty to.  He drugged a 13-year-old girl and had vaginal and anal sex with her, against her will.   And, “against her will” has two meanings here:  1) she told him “no” multiple times and 2) a 13 year old girl under the law now and under the law then does not have the capacity to legally consent to sex with an adult. 

His actions were heinous.  His actions were despicable.  His actions constituted a sex crime.  And the description of his intentional actions against this young girl indicates in no uncertain terms that this was not some sort of aberrant act in the heat of passion and drugs.  Instead, it shows both a course of conduct and a belief by Polanski that he is above the law.

That sentiment of putting his own interest above that of society is underscored by the fact that shortly after he pled guilty to the felony charge, he knowingly skipped town to avoid justice.  It is one thing to argue that the judge in that case was hell bent on sending him to jail for a very long time.  It is a completely different thing for a criminal defendant to take the law into his own hands and leave the country to avoid the prosecution.  That is not how a system based on the rule of law works.  Imagine if every defendant after pleading guilty or being convicted after a trial skipped the country because, well, he or she did not think he would be treated fairly.  That’s why we have an appellate process.  That’s why we have the law.

I am not going to end my post here advocating that Polanski should be shot or sent to jail for the rest of his life like some others out there.  Serious questions need to be raised about why it took so long for Polanski to be reigned in.  To Polanski and others, their sentiment is, “If the crime were so serious to the Los Angeles District Attorney’s Office, why didn’t they come after me sooner?”  

But those questions are completely separate and apart from whether Polanski should be sentenced and formally convicted (you are “convicted” once you are sentenced, not when you plead guilty).  Those are two separate inquiries that his lawyers and the French government are trying to meld together as one.  Put another way, they are saying because it took so long for the D.A.’s office to “get” Polanski, it means that the charges should be dismissed.  Those type of arguments usually carry more weight when the defendant skipped town before a trial.  With a trial, memories of witnesses fade, evidence is lost, etc.  Here, defendant pled guilty and there is no suggestion that his plea was taken unknowingly and involuntarily.  The minutes tell no lie.  It is irrelevant now that the victim of the sex crime has publically forgiven him. 

His actions of flagrantly skipping town negates any mitigating factor that his guilty plea should be vacated.  Hopefully, the Swiss court should use its good judgment in not releasing Polanski pending the extradition hearing.  And, when all is said and done, the LA County District Attorney’s Office should fashion a sentence that is fair and in proportion to the crime he pled guilty to, and not seek a sentence out of vengeance.

Since the removal of President Manuel Zelaya in June, the provisional government has steadily and predictably isolated Honduras, both from the international community and, most importantly, from the most basic tenets of democracy.  In true Orwellian fashion, the provisional government has justified everything it has done – from removing President Zelaya without the due process required by its own constitution it is purportedly defending to suspending basic civil liberties – in the name of “democracy.”  I am not sure what planet Roberto Micheletti and his provisional government cronies are from, but they are singlehandedly facilitating the tortured history and doublespeak that represented what we all thought was a Honduras goverment of the past.  

If you think Honduras is headed towards a breaking point, you are wrong.  Wake up.  Honduras is already there.

As you probably all know by now, the provisional government shut down Channel 36 and Radio Globo, because they were broadcasting telephone calls from President Zelaya.  “Yeah, we can’t have that,” says Michelletti.  “He has to be out of sight, out of mind!  Let’s sweep it all under the rug and maybe the Honduran people in all their idiocy will forget that we roused him in the middle of the night and forcibly removed him from the country.  Shhhh!  If we don’t talk about it, then it’ll go away!” 

Whether you agree with Zelaya or not is not the issue; the provisional government circumvented democracy when it removed Zelaya and now is trying to tack legitimacy to its actions after the fact.  It doesn’t work that way.  That’s political science 101.  Is it me or is Micheletti trying to become yet another case study in how yet another Latin American government brings down its iron fist in the name of democracy?  What’s in the water over there?

And, to add insult to injury, the provisional government has threatened to shut down the Brazilian embassy within the next 10 days and yesterday expelled four diplomats from the Organization of American States.  The diplomats were apparently members of an advance team trying to negotiate an end to the crisis.  To his defense, I guess Micheletti, who clearly is living in some bubble world on his family finca and is taking massive doses of reality-altering medications, surely sees no need to end a crisis that doesn’t exist in the first place. 

What I find further infuriating is the fact that the United States and many news outlets here have described the “situation” or “crisis” in Honduras as a “political one.”  This label is doublespeak.  To be sure, while the forcible removal of a sitting president is, by definition, a “political situation,” is it also a mere “political situation” when the civil rights of its citizenry, guaranteed by its own constitution, is abrogated for no legitimate reason?  That to me is more than just a “political situation,” but a tragedy that tears the social and civil fabric of Honduras at its roots.  For the United States and other countries to sit idly behind the scenes as Honduras falls deeper and deeper into isolation — against the will of its people — is unacceptable. 

Only by fortune so far, and certainly not because of the actions of the provisional or de facto government of Honduras, has widespread violence not broken out.  But what has broken out is the widespread violence the de facto government of Honduras has lashed against its own citizenry, in the name of some twisted version of democracy.

Without question, Alberto Contador has achieved great success as a cyclist, winning the TDF (twice), the Giro, and the Vuelta.  He sits with a very small class of riders that can achieve this.  And, he’s been able to achieve this at a tender age of 26, after almost dying of an aneurism in 2004.  This article is not a comment about his achievements nor is it a critique of his skill as a climber or time trialist.  Clearly, his record speaks for itself of Contador’s obvious talent.

That said, Contador still has a lot to learn as a rider, or more particularly, the politics of being a rider.  Contador reminds me of Lance Armstrong prior to his cancer when he was an outspoken, unapologetic, overconfident prick.  To Contador, it seems perfectly reasonable for everyone to bend under his will and to be visibly and pissed if anyone crosses him.  After all, at least to Contador, he is the undisputed champion of the world.

But cycling is not like boxing.  There is a politics to it, because in many ways more than boxing, it’s an old boys network.  Contador really put his foot in his mouth for unapologetically telling Armstrong off in public that he never respected Armstrong and never will.  Contador also put his foot in the mouth when he attacked in one of the first few stages (if a rider attacks, a person on the same team is not supposed to follow).  Contador is certainly entitled to his opinion but that is where politics comes in.  You definitely don’t say that to the hand that in large part feeds the sport and not to expect some consequences. 

Armstrong is an institution, which means he frankly doesn’t need to get into a war of words with Contador to prove his point.  Like a powerful politician, Armstrong, unlike Contador (who is a great rider but not yet an institution), has the money and influence to make Contador’s life a living hell.

The main way he is doing that is to ensure that Contador remains at Astana for the 2010 season.  Other members of the team were allowed to break their contract.  To Contador and his brother Fran, it seemed like he was entitled to do the same.  But, surprise, surprise, a reality check for Contador:  he had neither the money nor influence on Astana.  And, let’s not forget that Armstrong has a financial interest in Astana, enough so that no team in their right mind be able to afford a buy out of Contador’s contract. 

And, is it any surprise that all the good riders are getting signed by other teams, particularly Radioshack?  That is not happening by accident.  Armstrong may be a prick, he may be overconfident, and he may be an arrogant son of a bitch.  But, unlike Contador, he can express it in more subtle ways. 

Who do you think is laughing the hardest at Contador’s apparently inability to get out of his Astana contract?  Who do you think is laughing the hardest when one great rider after another is getting signed by other teams?  Who do you think is laughing the hardest that Vino is back at Astana?  The UCI is still getting all the paperwork to from Astana to ensure they get a pro license . . . but do you really think there is any doubt they will not have the bank guarantees?  They have it already.  Armstrong and his influence will make damn sure that Astana will not be omitted from UCI races because of a technicality.

Armstrong wants to win the TDF ‘10.  He’s being coy about it, by saying things like, “I’ll try,” or “Contador will be tough to beat!” — but he’s been coy since coming back from cancer when he clearly realized to play the cycling game, you have to play the political game.  Armstrong is one of the masters at that game. 

Contador will certainly be tough to beat on a stacked team such as Quickstep or Garmin.  But beating Contador will at least be manageable if he’s not on a great team (i.e., Astana) such as these.  This is no accident but a racing strategy.  It’s not necessarily race fixing as it is race dealing, and everyone knows in cycling there is quite a bit of quid pro quo.  You mess with that and you get screwed.  That’s what’s happening to poor old Contador now. 

Maybe this young champion will learn his lesson.  Maybe not.

Ever since Lance Armstrong announced his return to professional cycling, speculation has increased about the potential rivalry between Armstrong and Alberto Contador. I don’t profess to hold any goblets of truth here, so at best this post is just another drop in the speculation bucket.

Let me first get this out of the way. Lance Armstrong and Alberto Contador are world class cyclists and champions in their own rights. They both have egos that have for better or for worse made them the champions they are today and both can climb mountains on their roadbikes at speeds and distances that 99% of mortals can’t.

What has made this interesting, of course, is that both of these riders are on the same team — Astana — during the 2009 Tour De France.  The first four stages of this year’s race have caused many pundits to believe that Armstrong is positioning himself ahead of Contador — the team leader — in some strange quest to “steal” the yellow jersey from Contador.

Of course, memories of the rivalry between the elder Hinault and young Le Mond come immediately to mind, although in the Armstrong/Contador debate, Hinault is Contador and Le Mond is Armstrong.  But nothing could be farther from the truth.

Anyone who has followed the Tour De France at all for the last ten years knows that without question, the race is won and lost primarily in the mountains (in the last few years, it appears the race was won and lost with injections of EPO and blood doping). In that regard, the 19 or so second gap between Armstrong and Contador at this point is, as far as the final results are concerned, insignificant. The placings at this point when it comes to GC mean, and particularly to podium spots, absolutely nothing. 

Armstrong is no fool. He has come here to win, but perhaps not in the way he has done so in the past.

Armstrong is a brilliant tactician. As we have seen in the past, Armstrong will do whatever it takes to win, from weighing everything he put into his mouth to feigning fatigue back in 2001 when Ullrich was his main rival.  Put another way, nothing is by accident when it comes to either Armstrong’s preparation for Le Tour or his cycling conduct during Le Tour. 

I think Armstrong is purposely distracting attention away from Contador, which ultimately benefits Contador. This will be hard to swallow for Armstrong fans, but Contador is the strongest rider out there right now on the Astana team.  Armstrong is making it appear to other teams that he is the strongest rider out there and has aspirations to win.

Cycling, of course, is a team sport, and imagine how these perceptions completely mess up tactics for the other teams in countering Astana.  Armstrong can ride strong now, because frankly its not the mountains. If Armstrong and Astana wanted to be predictable, they’d make Armstrong ride with Contador and Levi, protecting them as they made their way to the mountains. But by displaying attack mode at this stage, teams are going to change their tactics, forcing, for example, GC riders on other teams to expend energy to bring back Armstrong . . .when frankly, Armstrong is not a contender for the number 1 spot. Even if teams know this, they have to have their top guys expend the energy, because you just can’t ever count out a 7 time champion. And that very fact benefits Astana and, particularly, Contador. 

It’s actually quite brilliant on Astana’s part.  This does not mean Contador has an easy ticket to Paris, but it will be made easier by Armstrong’s sacrifice and distraction.

In the end, I think Armstrong will receive more credit in the history books for supporting Contador in his quest for his second Tour win, than trying to win himself and coming up short.

Octavio Sanchez, a lawyer and the  former presidential adviser (2002-2005) and minister of culture (2005-2006) of Honduras has apparently been chosen by the Honduran Congress as its head constitutional scholar.  In that capacity, he has been assigned to provide thorough legal reasons of why it is simply “nonsense” for anyone or any country to call, label, or suggest that the recent events in Honduras amounts to a ”coup.”  Apparently, Mr. Sanchez came highly recommended by Iraq’s former information minister, Mohammed Saeed al-Sahhaf, also known as Baghdad Bob and Comical Ali.

Before I delve into Mr. Sanchez’s arguments, let’s first look at the definition of a coup.  According to wikipedia, a coup is the “unconstitutional deposition of a legitimate government, by a small group of the State Establishment — usually the military — to replace the deposed government with another, either civil or military.”  According to dictionary.com, a coup is “a sudden and decisive action in politics, esp. one resulting in a change of government illegally or by force.”

With that in mind, let’s look at Mr. Sanchez’s arguments about the absurdity of calling the recent events in Honduras a coup (http://www.csmonitor.com/2009/0702/p09s03-coop.html):

1) In 1982, Honduras adopted a new Constitution that enabled an “orderly return” to democracy;

2) “Soldiers arrested and sent out of the country a Honduran citizen who through his own actions stripped himself of the presidency”;

3) “When Zelaya published [a] decree to initiate an ‘opinion poll’ about the possibility of convening a national assembly, he contravened the unchangeable articles of the Constitution that deal with the prohibition of reelecting a president and of extending his term.  His actions showed intent . . .and triggered a constitutional provision that automatically removed him from office.”  Assemblies are convened to write new constitutions.

4) “Article 239 states that ‘no citizen who has already served as head of the Executive Branch can be president or vice president.”  Thus, anyone who “violates this law or proposes its reform, as well as those that support such violation directly or indirectly, will immediately cease in their functions and will be unable to hold any public office for a period of 10 years.”  “Immediately” means instantly, as in “no trial required” or no “impeachment needed.”

5) Zelaya was detained in Costa Rica because “Congress needed time to convene and remove him from office.  With him inside the country, that would have been impossible.”

6) “We have decided to stand up and become a country of laws, not men.  From now on, here in Honduras, no one will be above the law.”

Sanchez’s own ‘legal’ arguments, particularly the last one, reveal without any interpretation fallicious reasoning.  In that regard, Sanchez would have fit in nicely as an attorney in the former Bush administration. 

Nonetheless, to begin, and as Sanchez points out, Honduran law clearly allows for a constitutional rewrite, but of course the power to do that does not rest with the president.  Instead, an assembly can only be called through a national referendum approved by Congress.  Further, and in addition to Article 239 (which was included in the 1982 constitution to essentially bar dictators from the past from running again), Article 374 bars any amendments about the length of a presidential term, among other issues.  Under these circumstances, even if a vote was taken pursuant to Zelaya’s “intention,” it would have had no legal weight whatsoever.

One way to look at it is with this legal analogy.  Just say you purchased a gun legally from the store.  Your intention was to murder to death John Smith.  You go to his office and shoot him in the back of the head.  Little did you know, John Smith had already died of natural causes 2 hours before you shot him.  Modern legal reasoning establishes without question that you are not guilty of murder or attempted murder.  Similarly, the Honduran constitution is so rigid (just take a look, for instance, at Article 42, along with Article 239 and Article 374) that any actions by Zelaya as it related to this “Constitutional Assembly” were meaningless and would be afforded no weight.  It was simply impossible, legally and constitutionally, to do what Zelaya had apparently wanted to do (or at least what the Congress thought Zelaya was going to do) with this “Constitutional Assembly.”

But to Sanchez, it doesn’t matter whether something is legally or constitutionally impossible.  What matters is that the letter of the constitution was violated, particularly Article 239 — without taking into consideration at all the intent behind the inclusion of Article 239:  to prevent dictators from running for office.  Back before 1982, Honduras, as with other Latin American countries, had serious dictator problems.

In any event, even if one agrees that Zelaya’s actions were per se unconstitutional, nothing justifies his forcible removal from Honduras to Costa Rica.  According to Sanchez, his exile was necessary because “Congress needed time to convene and remove him from office,” and with Zelaya in Honduras, “that would have been impossible.”  But with this point particularly, Sanchez neglects to mention anything about the constitution and instead seems to obtain these points out of thin air.  So, with that in mind, I decided to quote some parts of the Honduran constitution:

Article 69: “A persons liberty is inviolable and can only be restricted or suspended temporarily through process of law.”

Article 71: “No person can be arrested nor kept incommunicado for more than 24 hours without being placed before a competent authority to be judged. Judicial detention during an investigation must not exceed six consecutive days from the moment that the same is ordered.”

Article 81: “All persons have the right to circulate freely, leave, enter, and remain in national territory. No one can be obligated to change home or residence except in special cases and with those requirements that the Law establishes.”

Wow.  What about these articles, Mr. Sanchez?  I guess they only apply to some people and not others.  At least to me, such a circumstance certainly doesn’t resonate with a country that adheres to the rule of law.

Here’s a brief story about Chris Behnke, a notable paparazzo:

I’m sure most of you have read this story of the photographer who took a photo of Obama shirtless in Hawaii.  There was all this talk of how close photographer Chris Behnke was able to get to take the photo — approximately 200 yards (I can only wonder if the secret service detail has been fired).  I can only imagine how much money Behnke scored for the shot.  But there’s another interesting twist that isn’t reported.

Chris Behnke is a Punahou graduate, class of 1994.  As you may recall, Obama is also a graduate of Punahou, albeit it much earlier.  Coincidence?  Of course not, but it shows at least a Hawaii connection — however minimal — between Behnke and Obama.

Chris Behnke graduated from Punahou High School in 1994.  He then graduated from Loyola Maramount in 1998, with a degree in film production.   He currently lives in Los Angeles, California.  His father is notable stock broker Richard Behnke, who runs Abel-Behnke Corporation, in Hawaii.

The Loony Bin is Dismissed

Andy Martin v. Linda Lingle, et. al.

In the last few weeks, as you may have read, Andy Martin filed a “lawsuit” against the Governor of Hawaii and others, alleging that he and the rest of the U-nited States of America had the right to obtain a copy of Barack Obama’s Certificate of Live Birth.  As expected, on October 22, 2008, the Supreme Court of Hawaii denied this claim.  There are so many different explanations of the memorandum decision that I thought I would just add it here so you can interpret it for yourself.

ORDER  Upon consideration of the petition for a writ of mandamus filed by petitioner Andy Martin and the papers in support, it appears that the issuance by the Department of Health of a certified copy of a vital statistics record to petitioner was not mandatory, but involved the exercise of discretion and judgment. See HRS § 338-18(b) (Supp. 2007) (The department shall disclose vital statistics records to those persons enumerated in HRS § 338-18(b)(1) through (13); otherwise, “[t]he department shall not permit inspection of public health statistics records, or issue a certified copy of any such record or part thereof, unless it is satisfied that the applicant has a direct and tangible interest in the record.”).

Therefore, petitioner is not entitled to mandamus relief against the respondent public officials. See In Re Disciplinary Bd. of Hawaii Supreme Court, 91 Hawai’i 363, 368, 984 P.2d 688, 693 (1999) (Mandamus relief is available to compel an official to perform a duty allegedly owed to an individual only if the individual’s claim is clear and certain, the official’s duty is ministerial and so plainly prescribed as to be free from doubt, and no other remedy is available.); Salling v. Moon, 76 Hawai’i 273, 274 n. 3, 874 P.2d 1098, 1099 n.3 (1994) (“A duty is ministerial where the law prescribes and defines the duty to be performed with such precision and certainty as to leave nothing to the exercise of discretion and judgment.”).

It further appears that the Hawai’i Rules of Civil Procedure and the Rules of the Circuit Courts of the State of Hawai’i do not provide petitioner with a clear and indisputable right to a telephonic hearing or an expedited hearing in Civil No. 08-1-2147. Scheduling a hearing for November 7, 2008 and requiring petitioner to personally appear at the hearing was within the discretion of the respondent judge and was not a flagrant and manifest abuse of discretion. Therefore, petitioner is not entitled to mandamus relief against the respondent judge. See Kema v. Gaddis, 91 Hawai’i 200, 204-05, 982 P.2d 334, 338-39 (1999) (A writ of mandamus is an extraordinary remedy that will not issue unless the petitioner demonstrates a clear and indisputable right to relief and a lack of alternative means to redress adequately the alleged wrong or obtain the requested action. Such writs are not intended to supersede the legal discretionary authority of the lower courts, nor are they intended to serve as legal remedies in lieu of normal appellate procedures. Where a court has discretion to act, mandamus will not lie to interfere with or control the exercise of that discretion, even when the judge has acted erroneously, unless the judge has exceeded his or her jurisdiction, has committed a flagrant and manifest abuse of discretion, or has refused to act on a subject properly before the court under circumstances in which it has a legal duty to act.). Accordingly, IT IS HEREBY ORDERED that the petition for a writ of mandamus is denied.

DATED: Honolulu, Hawai’i, October 22, 2008.

Philip J. Berg v. Barack Obama, et. al.

Andy Martin’s friend, Philip J. Berg, filed a claim against Barack Obama and others, claiming a whole litany of things of why Obama is not eligible to run for president as well as how Barack and the DNC were conspiring together to violate federal law.  On October 24, 2008, the United States District Court for the Eastern District of Pennsylvania denied Berg’s claim in its entirety.  Berg put everything and the kitchen sink into his complaint, so as you might imagine, the decision was long, as it addressed each of Berg’s several points separately.  It reserved about a paragraph or so for each of Berg’s “complaints.”  For the purposes of brevity, I’ve attached the relevant portion of the decision that pretty much sums it all up.  Berg’s claim was denied for two reasons:  1) Berg did not have standing to file a lawsuit and 2) even if Berg did have standing, he failed to state a claim.

A. Lack of Jurisdiction — Federal Rule of Civil Procedure 12(b)(1), a court must grant a motion to dismiss if it lacks subject matter jurisdiction over the case. The party asserting that jurisdiction is proper bears the burden of showing that jurisdiction exists. Kokkonen v. Guardian Life Ins. Co. of Am., 511 U.S. 375, 377, 114 S. Ct. 1673, 128 L. Ed. 2d 391 (1994); Packard v. Provident Nat’l Bank, 994 F.2d 1039, 1045 (3d Cir. 1993). A challenge to jurisdiction may be either factual or facial. See CNA v. United States, 535 F.3d 132, 145 (3d Cir. 2008)(citing 5B Charles Alan Wright & Arthur R. Miller, Federal Practice and Procedure § 1350, at 147-55 (3d ed. 2004)). Where the challenge is facial, as Obama and the DNC’s is here, courts must take the well-pleaded facts of the complaint as true and must draw all inferences in a manner most favorable to the plaintiff, as with ruling on a motion to dismiss. See Mortensen v. First Fed. Sav. & Loan Ass’n, 549 F.2d 884, 891 (3d Cir. 1977).

B. Failure to State a Claim — When considering a motion to dismiss a complaint for failure to state a claim under Federal Rule of Civil Procedure 12(b)(6), this Court must “accept all factual allegations as true, construe the complaint in the light most favorable to the plaintiff, and determine whether, under any reasonable reading of the complaint, the plaintiff may be entitled to relief.” Pinker v. Roche Holdings Ltd., 292 F.3d 361, 374 n.7 (3d Cir. 2002). However, “a court need not credit a complaint’s ‘bald assertions’ or ‘legal conclusions’ when deciding a motion to dismiss.” Morse v. Lower Merion Sch. Dist., 132 F.3d 902, 906 (3d Cir. 1997) (citations omitted).

I guess it’s now back to the drawing board for both Andy Martin and Philp J. Berg.  I can’t wait to see what they happen to come up with next.

EXCLUSIVE: Here’s the most recent Supreme Court Filing against Barack Obama.  It keeps PILING UP against Barack Obama.  He’s in a load of trouble now.  I think it’s all over for him.  The internet powerhouses have truly done it this time with another great example of their legal minds.

IN THE SUPREME COURT OF HAWAI’I
SUPREME COURT DOCKET NUMBER: CONFIDENTIAL

CHRISTOPHER JONES,
Petitioner,
HON. LINDA LINGLE, Governor; DEREK JETER, NY Yankees
HON. SARAH PALIN, Governor and VP Candidate;
Respondents.

EMERGENCY PETITION FOR A BILL OF LADING
INTRODUCTION AND PRELIMINARY STATEMENT
The question of the authenticity, public availability, and carbon content of the birth certificate of Senator Barack Obama (hereinafter “Senator Barack Obama”) has become a source of increasing embarrassment for me, myself, and especially I. Although Sena”tor” Barack Obama has posted a copy of his birth certificate on his own web site, and despite the fact that it has been corroborated to be a true short form birth certificate by the Hawai’i Department of Health, Senator Barack Obama still refuses to acknowledge that the birth certificate is fake, despite the fact that there is not even an iota of proof that it is, in fact fake. Accordingly, it is clear now – and do not ask how I know this because, let’s just say, I know this – that he was, in fact, born in Kenya, much less born at all.

FACTUAL ALLEGATIONS
1. The Petitioner
Petitioner Christopher Jones has been writing about Obama for over sixty-three years. Despite the fact that Senator Barack Obama was “purportedly” born in 1961 (a year that, as we all know, was the first “upside down year” and thus does not exist in duality or singularly for that matter), I have been following him for much longer than that. Trust me. I had an eye on him for some time and frankly I can’t trust an uppity intellectual such as Senator Barack Obama, who, according to my sources, is related to Sadam Hussein and is without question the Anti-Christ. I am the author of a book that hasn’t been published yet, “The History of Toilet Paper and the Asses That Loved Them.”

Although I am not a practicing attorney, I did go to law school but my passage to the Bar was steadfastly blocked by so-called “administrators” because, apparently, “they” thought I had some sort of “moderately servere character defect.” Yeah, whatever. We all know everyone who disagrees with me is a just a liberal, socialist, marxist bastard bent on burning the constitution and replacing it with the pig latin version of the Communist Manifesto, which, according to my sources, was written by the Isreali Mossad in 1987 and first drafted by Dr. Seuss in 1783 before he received his MD.

2. Birth certificate
I, along with about seven thousand others, including Santa Claus of all people, have applied for and was denied a copy of Senator Barack Obama’s birth certificate, along with a list of the last twenty things he had eaten from the frozen foods section. This is clearly an issue of national importance, because although we know that Senator Obama is qualified, we just can’t “trust” someone like Obama because, well, we can’t. I don’t think it would be a “safe” choice, particularly with this financial crisis, which was started by marxists such as Alan Greenspan and The Invisible Hand.

RELIEF REQUESTED
The Court should decide that the misapplication, misinterpretation, miscommunication, miscombubulation, and misappropriation of the relevant statue (see Statue of Liberty, Ellis Island, a photograph which is attached to this Petition) raises issues of sufficiently massive public and national importance that this Court has no choice but to entertain.

BASIS FOR GRANTING RELIEF
The constitutional issue
In Miranda v. Arizona, 384 US 436 (1966), the Supreme Court of the “United States of America” ruled that when a defendant is interrograted while in custody, the police, prior to that interrogation, must provide certain warnings and, if they don’t, the resulting confession will be suppressed. Similarly, this Court should give me Obama’s original birth certificate as well as the list of the last twenty things he has consumed from the frozen foods section, FORTHWITH.

The procedural issue
There is an anomaly under the procedues of Hawaii law, i.e., to provide someone with no standing to even request such items to get such items, and to provide someone with such items even though the request in the first place is frivolous. Of course, as we all know, legal procedures are simply procedures of the intellectual and we all have seen what has happened when we are too “intellectual” with things. After all, just look at the Constitution. Thus, procedurally, I am asking, and again pursuant to Miranda v. Arizona, 384 US 436, and it’s companion case, Brown v. Board of Education, 347 U.S. 483 (1954), that this Court should grant me RELIEF as well as the money to publish my next book, “Obama: The Love of My Life and His Connection to the Crisis in the Suez and the Race to Space (Part 7: Where is the Dog?).”

The substantive issue
There are clearly no substantive issues here.

CONCLUSION
Most respectfully, Petitioner asks this Court to call me as soon as possible. I’ll be hanging out on 73rd Street and Lexington tonight with my friend Lester.

DATED: October 24, 2008
Honolulu, HI
Respectfully submitted,
CHRISTOPHER JONES