Tuesday Reads: West, Texas; Boston; Biohazards; and Erosion of Constitutional Rights

Good Morning!!

I thought I’d start this morning’s post with something beautiful before I get to the news of the day. I came across these amazing photos of birds yesterday–a nice reminder that the natural world can nourish us emotionally and provide respite from startling events and frustrating news that surrounds us in the supposedly “civilized” world of humans.

Now some news…

The fertilizer plant disaster in West, Texas is still under-reported. From what I can tell from following the story on twitter though, people are hurting down there and really need help. Here are a couple of updates I found this morning.

From CBS in Dallas: West Fertilizer Plant Explosion Cause Could Take Several Weeks to Determine

The Federal Bureau of Alcohol, Tobacco, and Firearms is investigating the blast along with the Texas State Fire Marshal.

State records reportedly show the West Fertilizer plant had a yearly capacity of 2,400 tons of potentially explosive ammonium nitrate.

So far, according to the ATF the only possible contributory cause that has been eliminated from consideration is the weather.

The U.S. Army Corp of Engineers arrived on scene Monday to assist investigators in assessing the 93 by 10 foot crater.

On Monday, the U.S. Homeland Security Department said The West Fertilizer Co. facility isn’t currently regulated under a department program that’s designed to reduce the risk of terrorism at certain high-risk chemical facilities.

CBS-11 has learned Homeland Security is now looking into whether the facility should have submitted paperwork about the chemicals stored at the plant to determine if it should be regulated.

The Christian Science Monitor says, Smoking gun in West, Texas, fertilizer blast: lack of government oversight

Although the cause of the blast is still undetermined, what is clear is that the West Fertilizer Company stored large quantities of highly reactive products, including anhydrous ammonia and ammonium nitrate, in the middle of a small town with very little oversight from state or federal agencies. Ammonium nitrate was used by the Oklahoma City bomber Timothy McVeigh in 1995, killing 168 people. The West, Texas, explosion killed 14, and injured nearly 200.

Texas does not have an occupational safety and health program that meets federal requirements. The federalOccupational Safety and Health Administration (OSHA) is therefore responsible for ensuring the safety of potentially dangerous workplaces like the West facility.

OSHA has inspected the West plant exactly once in the company’s 51-year history. That 1985 inspection detected multiple “serious” violations of federal safety requirements for which the company paid a grand total of $30 in fines. OSHA’s 1992 process-safety-management standard for highly hazardous chemicals is supposed to protect against disasters like the West explosion, but it wasn’t in place for that inspection.

Regardless, OSHA lacks the resources to undertake the kind of comprehensive inspection needed to ensure compliance with the process safety standard at small facilities like West Fertilizer Company. OSHA’s tiny staff of around 2,400 inspectors is spread so thin that it would take more than 90 years to conduct even cursory inspections of all eligible workplaces in Texas.

That’s pretty horrifying. I have to wonder how many other fertilizer plants like this one are out there like ticking time bombs.

Common Dreams calls attention to another horror story that affects all of us. “You and Your Family Are Guinea Pigs for the Chemical Corporations: How Americans Became Exposed to Biohazards in the Greatest Uncontrolled Experiment Ever Launched”

A hidden epidemic is poisoning America. The toxins are in the air we breathe and the water we drink, in the walls of our homes and the furniture within them. We can’t escape it in our cars. It’s in cities and suburbs. It afflicts rich and poor, young and old. And there’s a reason why you’ve never read about it in the newspaper or seen a report on the nightly news: it has no name — and no antidote.

The culprit behind this silent killer is lead. And vinyl. And formaldehyde. And asbestos. And Bisphenol A. And polychlorinated biphenyls (PCBs). And thousands more innovations brought to us by the industries that once promised “better living through chemistry,” but instead produced a toxic stew that has made every American a guinea pig and has turned the United States into one grand unnatural experiment.

Today, we are all unwitting subjects in the largest set of drug trials ever. Without our knowledge or consent, we are testing thousands of suspected toxic chemicals and compounds, as well as new substances whose safety is largely unproven and whose effects on human beings are all but unknown. The Centers for Disease Control (CDC) itself has begun monitoring our bodies for 151 potentially dangerous chemicals, detailing the variety of pollutants we store in our bones, muscle, blood, and fat. None of the companies introducing these new chemicals has even bothered to tell us we’re part of their experiment. None of them has asked us to sign consent forms or explained that they have little idea what the long-term side effects of the chemicals they’ve put in our environment — and so our bodies — could be. Nor do they have any clue as to what the synergistic effects of combining so many novel chemicals inside a human body in unknown quantities might produce.

Read it and weep.

Down in South Carolina, Elizabeth Colbert Busch and disgraced former Governor Mark Sanford met in a debate in the race for the district one congressional seat, and Busch got personal.

From Raw Story:

“When we talk about fiscal spending and we talk about protecting the taxpayer, it doesn’t mean you take that money we save and leave the country for a personal purpose,” said Colbert-Busch, in a direct attack on Sanford’s 2009 trips to Argentina to engage in an affair.

“She went there, Governor Sanford,” said one of the moderators, WCBD-TV anchor Brendan Clark.

“I couldn’t hear what she said,” Sanford said in response, which drew a laugh from his Democratic opponent. “Repeat it, I didn’t hear it. I’m sorry.”

Video at the link.

There has been a flood of information and opinions coming out in the Boston Marathon bombing case over the past couple of days. Most stunning to me yesterday was this post by Bmaz at Emptywheel that called attention to a revelation in an LA Times article that suspect Dzhokhar Tsarnaev

had asked several times for a lawyer, but that request was ignored since he was being questioned under the public safety exemption to the Miranda rule.

WTF?! The right to an attorney is completely separate from the responsibility of law enforcement to inform suspects of their rights. Anyone who has watched Law and Order knows that police must stop questioning a suspect if he asks to speak to an attorney. Bmaz writes:

Assuming the accuracy of this report, the news of Tsarnaev repeatedly attempting to invoke right to counsel is critically important because now not only is the 5th Amendment right to silence in play, but so too is the right to counsel under both the 5th and 6th Amendments. While the two rights are commonly, and mistakenly, thought of as one in the same due to the conflation in the language of the Miranda warnings, they are actually somewhat distinct rights and principles. In fact, there is no explicit right to counsel set out in the Fifth at all, it is a creature of implication manufactured by the Supreme Court, while the Sixth Amendment does have an explicit right to counsel, but it putatively only attaches after charging, and is charge specific. Both are critical to consideration of the Tsarnaev case; what follows is a long, but necessary, discussion of why.

In fact, “Miranda rights” is a term that is somewhat of a misnomer, the “rights” are inherent in the Constitution and cannot be granted or withheld via utterance of the classic words heard every day on reruns of Law & Order on television. Those words are an advisory of that which suspects already possess – a warning to them, albeit a critical one.

In addition to being merely an advisory of rights already possessed, and contrary to popular belief, advising suspects of Miranda rarely shuts them down from talking (that, far more often, as will be discussed below, comes from the interjection of counsel into the equation).

Something is very wrong here. Glenn Greenwald picked up the ball in a story published by the Guardian. Report: Dzhokhar Tsarnaev’s repeated requests for a lawyer were ignored

Delaying Miranda warnings under the “public safety exception” – including under the Obama DOJ’s radically expanded version of it – is one thing. But denying him the right to a lawyer after he repeatedly requests one is another thing entirely: as fundamental a violation of crucial guaranteed rights as can be imagined. As the lawyer bmaz comprehensively details in this excellent post, it is virtually unheard of for the “public safety” exception to be used to deny someone their right to a lawyer as opposed to delaying a Miranda warning (the only cases where this has been accepted were when “the intrusion into the constitutional right to counsel … was so fleeting – in both it was no more than a question or two about a weapon on the premises of a search while the search warrant was actively being executed”). To ignore the repeated requests of someone in police custody for a lawyer, for hours and hours, is just inexcusable and legally baseless.

As law school dean Erwin Chemerinsky explained in the Los Angeles Times last week, the Obama DOJ was already abusing the “public safety” exception by using it to delay Miranda warnings for hours, long after virtually every public official expressly said that there were no more threats to the public safety. As he put it: “this exception does not apply here because there was no emergency threat facing law enforcement.” Indeed, as I documented when this issue first arose, the Obama DOJ already unilaterally expanded this exception far beyond what the Supreme Court previously recognized by simply decreeing (in secret) that terrorism cases justify much greater delays in Mirandizing a suspect for reasons well beyond asking about public safety.

But that debate was merely about whether Tsarnaev would be advised of his rights. This is much more serious: if the LA Times report is true, then it means that the DOJ did not merely fail to advise him of his right to a lawyer but actively blocked him from exercising that right. This is a US citizen arrested for an alleged crime on US soil: there is no justification whatsoever for denying him his repeatedly exercised right to counsel. And there are ample and obvious dangers in letting the government do this.

So far the response from the DOJ has been {{crickets}}

I’ll try to write more on the Boston investigation later today.

In another shocking denial of constitutional rights, the Supreme Court yesterday refused to take the case of a Louisiana man who waited seven years for a trial because of the state’s failure to provide funding for the defense of indigent citizens accused of crimes.

From The Atlantic: Do Louisianans Have the Right to a Speedy Trial?

There has been for decades now an ideological split at the United States Supreme Court over the Sixth Amendment’s right to a speedy trial — one of the most basic of due process rights. Court conservatives have successfully limited the scope of the right by justifying and forgiving unconscionable delays in bringing criminal defendants to trial. And the Court’s progressives, outnumbered now for a generation, have complained not just about the unjust results of those cases but about the indigent defense systems which have fostered trial delays in the first place.

And so it is again. On Monday, in a case styled Boyer v. Louisiana, none of the Court’s five conservative justices were willing to come to the aid of a man who had to wait seven years between his arrest and his trial because of a “funding crisis” within Louisiana’s indigent defense program. In fact, those five justices refused even to render a ruling on the merits of the matter, instead deciding after oral argument and all the briefing in the case that their earlier decision to accept the matter for review was “improvident.”

It was left to Justice Samuel Alito to defend the Court’s inaction. The long delay in bringing Jonathan Edward Boyer to trial on murder charges was not just the fault of Louisiana and its infamously underfunded and understaffed indigent defense program, Justice Alito concluded. “[‘T]he record shows that the single largest share of the delay in this case was the direct result of defense requests for continuances, that other defense motions caused substantial additional delay, and that much of the rest of the delay was caused by events beyond anyone’s control,” he wrote. That was enough to deny Boyer’s claims.

The New York Times editorialized about the decision this morning: A State’s Duty to Indigent Defendants.

On Monday, the Supreme Court should have said that every state has the duty to pay for counsel for indigent criminal defendants and ensure them a speedy trial. The court should also have ordered an appeals court in Louisiana to reconsider its decision to uphold a conviction for murder and armed robbery. The court did neither. Its five conservative justices simply refused to decide the case, leaving the conviction and a life sentence in place.

Jonathan Boyer spent more than seven years in the Calcasieu Parish jail, waiting to be tried. For the first five years, the state did not have the money to pay for the two defense attorneys required in a death penalty case. The trial went forward only after the state decided to reduce the first-degree murder charge in favor of a lesser charge, which made Mr. Boyer’s case less expensive to defend.

Mr. Boyer argued that the delay violated his Sixth Amendment right to a speedy trial, requiring a reversal of his conviction. But the state appeals court ruled that the delay was mainly because of a factor “beyond the control of the state” — a “funding crisis” — and that there was no constitutional violation.

That did not wash with Justice Sonia Sotomayor, who, in a dissent joined by three other moderate liberals, said in so many words that states are ultimately responsible for providing adequate counsel, whatever their excuses, and that the state appeals court made “a fundamental error” that the justices should have corrected. She further noted that the Boyer case was not isolated and illustrated “larger, systemic problems in Louisiana.”

I guess the lesson is to live in a blue state if you think there’s a chance you might get accused of a crime.

Now it’s your turn. What are you reading and blogging about today? Please post your links on any topic in the comment thread.