Monday, February 1, 2010

THOUGHTS ON RIFQA BARY

[I just posted this comment at AtlasShrugs, which has done a generally superb job in following Rifqa's case...But nobody's perfect.]

"Hold your hand, my lord:
I have served you ever since I was a child;
But better service have I never done you
Than now to bid you hold."
--King Lear, Act III, Scene VII

Atlas, in the bowels of Christ, I beseech you to imagine that you may be mistaken.

No good can come of this badgering of Mr. Stemberger, can it?

I hate to go and commit remembering here, but does anyone else recall the single great legal obstacle that Rifqa faced here in Florida? JURISDICTION, period. Once Ohio asserted its jurisdiction, it was a foregone conclusion that the case wd return there. Clarence F'ing Darrow cdn't have saved that case in Florida at that point.

Since there was not a single allegation that the Bary parents had done anything to Rifqa IN FLORIDA, then there was no question of any kind of Florida criminal charge against them. There was just Rifqa’s allegation of the threats from her Dad, but they all occurred in Ohio, so once Ohio agreed to take the case, it was GONE FROM FLORIDA.

Recall that both Florida and Ohio law enforcement had unanimously opined that neither the Barys nor their community were even a remote threat to Rifqa. This obstacle for Mr. Stemberger was in practical terms insurmountable. But even if he had commenced the long process of preparing for trial with experts like Spencer, Sultan, etc., it was moot once Ohio took the case.

Frankly, I thought it was a miracle that the case stayed in FL as long as it did (2 ½ months). And no less an expert than our amigo john jay repeatedly warned right here at this site that there were no legal grounds to keep the dependency case in Florida once the Ohio court asserted its jurisdiction.

Mr. Stemberger makes one key assertion: “The legal strategy and plan agreed to by all lawyers involved in both Florida and Ohio from the beginning has been to get Rifqa declared a “Dependent” by the state.” This may sound a little crazy to most people, but it is indeed legally essential to saving Rifqa in this circumstance. The reason is that, to a great extent, PARENTS OWN THEIR MINOR CHILDREN. PARENTS HAVE RIGHTS SUPERIOR TO THEIR MINOR CHILDREN. Doubt me? Well, what happens when---
1) Minor child slaps parent? Battery.
2) Child slaps child? Battery.
3) Parent slaps parent? Battery.
4) Parent slaps child? NOTHING—a parent is legally entitled to strike (though not INJURE, nor ABUSE) their minor child.

Another Florida example: if a minor confesses to a crime, but his parent has told the police they do not them to speak to the child, then the confession is suppressed. IN OTHER WORDS, THE PARENT WHO IS NOT PRESENT HAS MORE RIGHT TO INVOKE SILENCE THAN THE CHILD WHO IS ACTUALLY BEING QUESTIONED.

Parents own their minor children.

Without some compelling reason for the State to step in, Rifqa wd perforce be back at home, and soon dead. But her ingenious attorneys in Ohio have effectively done a back-door maneuver for her to “plead guilty” as an “unruly child.” THEREFORE, the State has to “control” her via the foster home mechanism…THEREFORE, she is NOT sent home.

THEREFORE, she is alive.

I sure appreciate Jamal Jivanjee’s heart and sincerity, but he seems to be in denial that Rifqa’s fate is indeed in A DEPENDENCY COURT CASE, where certain established rules and laws of Ohio will decide it, not divine justice nor divine truth. Mr. Stamberger has described two Ohio attorneys on the case whose credentials look mighty solid to me. Does anyone else have a remotely credible alternative to these counselors?

When I take a case, I always review with a client how we define a “win,” and how we achieve that win. To define a “win” might seem self-evident, but not always. For example, in a criminal case the theoretical objective is always to get a “case dismissed.” But sometimes that is just not feasible, or only after a frightfully high risk. Let’s say we are facing a life felony, but we are truly innocent. If we can ultimately plea it out for a misdemeanor, with just fines and court costs, is that a “win?” Many defendants will say YES, since the risk at trial is so great.

In Rifqa’s case, her team has defined a “win” as her being separated from her parents until she turns 18. Since I believe that her return to her parents poses a distinct probability of her being murdered, I agree with that definition. As I understand it (and I have NOT seen any detailed legal review of the proceedings), the agreement she entered in court a couple weeks back SECURED THAT WIN. What her parents now want to do (renege) is irrelevant—the deal is signed, sealed, delivered!

A few weeks back I was appointed a case to defend, a poor old derelict charged with panhandling (60 days max). Well, we had the trial. The very experienced prosecutor questioned the very experienced police officer, who provided the details of the panhandling in question. The prosecutor also made sure to ask the officer whether the case occurred in our county, a routine requirement to establish jurisdiction. And the officer confirmed it.

Well, the problem was that the panhandling charge was made under a municipal ordinance, not state law, so the officer needed to establish that it occurred within the city limits, not the county. After the State rested, I immediately rested without calling my poor wino defendant to quarrel with the officer’s facts, and moved for an acquittal since the prosecutor had not established that it had occurred inside the city limits. The judge agreed, case dismissed! Yaaayyy!!

But my defendant was indignant! He wanted to testify to refute the officer’s testimony that he had been panhandling. He started to argue with me, “I need to tell the judge that isn’t the way it happened!” But we already won, sir! He didn’t care—he was like Mr. Jivanjee, he wanted the TRUTH to come out, he wanted JUSTICE.

But Rifqa needs to WIN.

My friends, we all need to WIN. This is a colossal, long-term struggle, and this is a critical battle in it. But we cannot be so blinkered that we do not see the incredible value of KEEPING THIS GIRL OUT OF HER PARENTS’ CLUTCHES, in effect saving her life. That has been an amazing, almost miraculous outcome, and a HUGE VICTORY. Don’t believe me? Ask the Barys and their attorneys and CAIR, they understand how bad that outcome is for them.

John Stemberger did a creditable job with a very bad hand. I don’t know if every thing he did was perfect, but I’ve never seen a perfect representation. Has anyone? If he had a hand in picking Rifqa’s Ohio team, and they got this win, then he has the right to take a small bow, too.

I just don’t see the point in attacking Rifqa’s attorneys in this case. It is an unjustified and needless distraction, and detracts from the energy and focus we can marshal against our real jihadi enemies. Which enemies are so forcefully, skillfully and relentlessly identified and skewered at this mighty website.

But John Stemberger isn’t one of them. He deserves a break.

4 comments:

pbeeli said...

My dear jewishodysseus. Your post brought tears to my eyes. kafirman

kafirman said...

Having problems posting at AS. Here is my response.

Jewishodysseus, Because of my ignorance of Greek mythology, I do owe you an apology. Sorry about the Jewess line. I thought Odysseus was a woman.

We are discussing my accusation of you "jettison[ing]" Judeo Christian values. My choice of "jettison" is based on

1. Bouvier: "wins must also be in compliance with our Judeau-Christian principles."
JewishOdysseus: "NOOOOOO, an attorney is obliged to ZEALOUSLY represent his client in compliance with the applicable law and professional ethical strictures, period." I counted 6 o's. And they're all in caps. My friend, that is a jettison.

2. your implied admiration for Darrow. We can thank this genius for softening up American jurisprudence and removing the Creation Clause foundation for Rifqa's defense. Now I am not a lawyer, but my "arm chair" lawyer post above reveals how I would have liked to see the Rifqa case won (had Darrow and others not damaged our jurisprudence as they did).
Judeo Christian foundation (as noted in the Declaration and elsewhere): All men are created equal.
Islam: The umma is to make the kafir "feel oppressed" (Koran 9:29).
Verdict: take your Islam out of America. It does not belong here.

Jewishodysseus, I am asking you to think foundationally about the legal profession. While I understand the state's regulatory function of law, I think we can both look at 20th century history and see where the state was unethical. If any judicial system is built on man, it will topple. If it is built on self-evident understanding that God has endowed all men with equal fundamental rights before the law, things are looking much better.

I'm sure you've done great lawyering work. I think your intentions are good. But I also think you have opportunities to move (or question) the prevailing humanistic foundations of jurisprudence. As few examples, there is Judge Roy Moore, the Thomas Moore legal society and Alan Keyes (loyaltoliberty.com).

I really liked your poetic quote of Shakespeare AND your Crowmwellian from "the bowels of Christ" plea. I also liked your plea to "conscience." If you haven't read CS Lewis's Mere Christianity, I recommend that you do so. In 33 short pages Lewis turns conscience into a case for God.

I do not consider this to be a nitpicking conversation, but a foundational one. I would also like to hear you reply to my hopes for a minimal agreement remarks.

Jewish Odysseus said...

1--apology accepted.

2--I used Clarence Darrow as an example of an extremely well-known courtroom advocate, I cd have used a hundred others, Johnnie Cochran, F. Lee Bailey, Brendan Sullivan, Roy Black, etc. Just read Darrow as "[insert name of favorite famous courtroom advocate here]. There was absolutely 0% intent to use Darrow for any political or social symbolism.

3--Thinking, or more importantly, acting "foundationally" about the American legal profession is far outside the scope of this controversy, and to do so only distracts from the concrete problem RIFQA is faced with, and thus increases the chances of her being murdered.

4--The raison d'etre of this blog is to save civilization from Islamism (see my very first long post in 2006), and as such we of course fundamentally agree in our philosophy. But there is a time and a place for everything, and this particular court case is not the time/place to challenge the lack of attention to divine princples in our legal system.

As I said earlier, this girl just needs to WIN, and physically survive. Period. And if her legal team has helped her to get to that point, they don't deserve a lot of cat-calls and insults.

Is that really such a controversial position?

Anonymous said...

I want to go to Rifqa hearing on Tuesday. What should I know about this? Can I take my anti-Islamic signs in the courtroom? What exactly is at stake? km