This is MY Country

Web exclusive: The following was declined publication by my editor, but has been made available for your review here. I am not entirely sure why the editor declined to print the article. The only reason offered was that it was not related to my typical subject matter. Media bias?

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A few years back, I was touring through the National Museum of the United States Air Force in Dayton, OH. Underneath the largest hanger, there sat the SR-71 Blackbird, a piece of Cold War era, cutting-edge technology largely unknown until just before its retirement. Standing in front of the sleek, radar-dodging behemoth was an old man wearing a hat indicating his soldierly service. I first noticed him when he was proudly having his picture taken in front of the bird. As I approached, I kept an eye on him. He must have noticed my attention. With a tear in his eye and a slight tremble in his voice, this octogenarian – and obviously proud veteran – though bent over by the weight of his many years, puffed out his chest as if at attention and exclaimed as he pointed to the retired plane, “That is the best damn plane ever built.”

The old soldier’s words are a far cry from the headline I saw earlier this week, “Americans Somber About Bush, U.S., Iraq.” Somber? What in the world do we have to be somber about? We live in the best country ever built. Ever.

Sure, our country has had its share of black eyes. We have committed our share of abuses in the name of freedom. We have made innumerable mistakes and looked awfully foolhardy at times. But, for goodness sake, this is the country that epitomizes freedom in our world today. It is America that has stood up for the downtrodden, whether they land on their shores or whether we need to go to theirs. Grit, guts, and glory ought not be viewed pejoratively; rather, they ought to reflect the dogged determination that is part of the humble fabric of this fine nation.

This is the country of apple pie and Grape Nuts. It is the country that birthed the sky-scraper and popularized the Frisbee. This nation made electricity a common commodity and gave rise to the mass production of the automobile. Visionaries here took flight – literally – on a whacky notion that man need not be bound by gravity. Pilgrims braved treacherous seas and starvation to found a place where people can freely exercise their religion without one being established upon them.

I am plain sick and tired of the poor-mouthing that has been going on in this nation for the better part of the last decade. One side of the political spectrum accuses the other of destroying a thriving economy; the other decries their opponent’s policies as laying a brick road to eternal poverty. Some base their power on a war, others create power by undermining one. Morality is defined by the expedient and ethics by the putrid breeze of popular culture. Even the poorest among us live lavishly in comparison to the orphan on the streets of Calcutta. Somber? Give me a break!

In 1940, Don Raye penned the lyrics to the folk song, “This is My Country.” In the second chorus, Raye emphatically recites, “This is my country! Land of my choice! This is my country! Hear my proud voice! I pledge thee my allegiance, America, the bold, For this is my country to have and to hold.”

It really comes down to that: will you have and hold your country? Is this land your choice? Can you sing, “What difference if I hail from North or South, Or from East or West, My heart is full of love for all of these. I only know I swell with pride and deep within my breast, I thrill to see old glory paint the breeze?”

The choice is yours. Go somber or go proud. This is MY country.

Copyright: Jeremiah G. Dys, Esq. May not be used absent express, written permission. Please contact the author for permission to reprint.

Venues: They are a Changin'

Q: What is a “change of venue?”

A: Before an answer to this question can be properly understood, you must understand that the Sixth Amendment to the Constitution of the United States guarantees an alleged criminal the right to a “speedy and public trial, by an impartial jury of the State and district” where the crime allegedly occurred. Key in on that word “impartial;” its importance will be shown shortly.

Here’s what normally happens. A criminal is arrested and indicted for the commission of a crime. Ultimately, the criminal defendant will get the opportunity to defend the charges brought against him in an appropriate court of law. That defense takes place in the form of a trial. Criminal trials are presided over by a judge and a jury. The judge governs matters of law, while the jury is the determiner of facts. That jury, for a criminal trial, consists of twelve individuals who are residents of that county.

Most of the time, we are blissfully unaware of all the sordid details of the crimes that happen within our community on a routine basis. But what happens when a “high-profile” case comes to trial? Trials for cases that have already been tried in the court of public opinion present an especially difficult issue when it comes time to make payment on that Constitutional guarantee of an impartial jury.

Sometimes, the projected jury pool could be so vastly biased that it is necessary to find another jury pool. Enter “change of venue.” Venue is simply the place where the trial will occur. When we speak of changing venue, lawyers mean that the trial needs to change location. So, if the case is pending in County X, but County X is determined to be frightfully biased, the trial of the case is moved to County Y, using all the lawyers, witnesses, and even judges that would have been used in County X, but jurors from County Y in an effort to ensure impartiality.

Changes of venue are few and far between. One reason for that is the law, which requires a defendant to prove “the existence of a locally extensive present hostile sentiment against him,” as one court put it. The Rules of Criminal Procedure require the existence of “so great a prejudice against the defendant” that no “fair and impartial trial” can be had in the place the law demands trial. Proof of such a pervasive bias is undeniably difficult.

Why? Well, say there are 80,000 people residing in the current venue. The jury only needs to be twelve people. We all know that you, dear readers, keep well-informed of the goings-on of this county, but not all of our fine residents do – by this paper, radio, or television. It is safe to say, frankly, that most of our neighbors have no idea what is going on down at the courthouse. Only twelve people who know nothing of the criminal defendant or alleged crime need to be found to secure impartiality. Finding those twelve can be surprisingly less difficult than you may think.

The reason the burden is so heavy upon a criminal defendant is that there are great costs to changing venue. Where do you go to be free of the bias? What does it cost to transport the entire trial to the new place of venue? What evidence must make the trip?
Our system of justice functions well to ensure impartiality. It depends upon the honesty of prospective jurors to confess bias, should they have any. Empanelling “an impartial jury of the State and district” where the crime allegedly occurred happens far more often than not.

Impartial juries: just one more indication of your importance to the assuaging of injustice in this fine country.

Copyright: Jeremiah G. Dys, Esq. May not be used absent express, written permission. Please contact the author for permission to reprint.

Who Pulls the Trigger on War Power?

Q: President Bush wants to send more troops to Iraq. The Democrats majority in Congress does not want more troops sent. What branch of government holds the power of war?

A: Power is all the rage lately. The out-of-shape, take “power walks.” The sleep-deprived take “power naps.” The leisurely lunch, has been replaced with “power lunches,” where “power bars” are the main course. Even, or perhaps especially, in politics, the grab for power often leaves those who matter most in a lurch. Such seems to be the state of this week’s affairs.

On Wednesday, President Bush announced his plan to send more troops to Iraq. The day before, Sen. Ted Kennedy gave a “pre-buttal” to the President’s speech. The day after the presidential prime time address, Congressmen and Senators were wagging their tongues in a flurry of speeches that say only enough to get them airtime on the major news networks. All the hullabaloo is about who has the power over the troops.

The President has laid out a plan to increase troop presence and action in Baghdad. The Democratic halls of Congress, still full of vim and vigor from November, are making empty threats to prevent such a malefaction. Sen. Harry Reid is proposing a “non-binding” Senate resolution that expresses disapproval of the President’s newest plan. Speaker Pelosi will no doubt follow suit. But who wins the power war? More importantly, who loses?

I am not going to argue the merits or detractions of the President’s plan. But, in order to sift through the rhetoric of both sides of the aisle, let me give you some power of your own; a “separation of powers,” to be precise.

The President is the Commander-in-Chief of the Armed Forces, according to Article II, Section 2 of our U.S. Constitution. Thus, he has the authority to position – without any branch of government’s approval or permission – the finest military in the world. As one of his chief duties as President, it falls to him to organize, prepare, and strategically place our military so as “to provide for the common defense.”

That brings us to Article I, Section 8 of our Constitution, which bestows the power to fund such a common defense upon the Legislative branch. What is more, if there is war to be declared, that too falls to the Legislature, as does the very raising, supporting, equipping, and regulating of the army, navy, and militia.

Hence the two seemed locked in an un-ending struggle. While the President sets the course, turns the wheel, and aims the barrel, it is the Congress that buys the gas and turns the key of the military machine that drives us into battle. Unless the two work in concert, war is not possible. Unless the two ends of Pennsylvania Avenue act in complementarity, military actions will fail before they begin.

As you listen to Senators and Congressmen huff and puff as they try to blow the White House down, remember that the side you disagree with must also be complicit in that with which you lodge your agreement. That is, if you like the idea of more troops, then you need the Legislature to adequately fund them. If you prefer fewer boots on the ground in the Green Zone, only the Executive can order them home. They may be bitter bedfellows, but for the American military to be at its most powerful, the power we often refer to as separate, must work in tandem.

In the final analysis, the most powerful weapons in our current conflict are the grunts, flyboys, leathernecks, and mates of the U.S. Armed Forces. May God bless their mission and bring them home safely. And soon.

Copyright: Jeremiah G. Dys, Esq. May not be used absent express, written permission. Please contact the author for permission to reprint.

Was that Lying or Laying in State?

Q: What does it mean when a body is “lying in state?”

A: At first blush, this may seem out of the ordinary for this column – a column routinely dedicated to answering your legal curiosities. But, with the recent passing and “lying in state” of President Ford, this question piqued my curiosity, when posed by my overly inquisitive friend.

It appears that there are at least three variations on the theme of “lying in state.” At its heart, “lying in state” refers to that honor given to the body of an esteemed individual wherein the person’s body is laid in a place of prominence so that others can pay their respects. In that sense, it is often referred to as, “lying in repose” – meaning, literally, to lie (or rest) “in peace.” Thus, any deceased person can “lie in repose” and often do at the funeral home or place of worship of his or her family’s choosing.

What we are more familiar with, however, is the idea of “lying in state” where the person is a person of prominence and the pedestal is the rotunda of the United States Capitol. By regulation and custom, only those due an official, or “state,” burial are entitled to the honor of “lying in state.” That same regulation and custom usually only permits U.S. Presidents, Congressmen, and military commanders to be “laid in state.”

You may remember that in 2004, we witnessed Ronald Reagan’s “lying in state,” which was preceded by his “lying in repose” at the Ronald Reagan Library. But, when Chief Justice William Rehnquist passed away, his family chose to have his body “laid in repose” within the Supreme Court building, even though President Bush offered to authorize his “lying in state.”

Since the building of the US Capitol, thirty bodies have placed upon the Lincoln catafalque – the bier (or stand) made of hewn pine boards, roughly nailed together to support Lincoln’s casket – at the center of our legislature. Eleven Presidents, a variety of congressmen, Generals such as MacArthur and Eisenhower, and unknown soldiers from American wars have been granted this traditional honor. Other notables include, Pierre L’Enfant – the planner of the District of Columbia, J. Edgar Hoover – the colorful director of the FBI, Henry Wilson – the only Vice-President to have been given the honor, as well as one (and the only) woman, who did not fill any of the traditional offices, yet was indisputably deserving of the honor: Rosa Parks.

The third level of this postmortem honor is called, “lying in honor.” After a 1998 assassination attempt by a lunatic claimed the lives of two Capitol Police officers, the US Congress provided a way in which heroic individuals, like Officer Jacob Chestnut and Detective John Gibson, could be honored.

“Lying in state” is a distinct honor of national significance and is used only in the most unique of circumstances, thus maintaining its regal significance. While it is not a legal right, it is a tribute that often requires laws to permit it, as in the case of Rosa Parks and “lying in honor.” Thus, Sidebar’s mission to answer questions involving the law or legal process is satisfied.

And, if your mind is like mine, there is one question swirling around your mind right now: What is the difference between “lying” and “laying,” “lie” and “lay,” and “laid” and “lain?”

I’m an attorney. Go ask your English teacher.

Copyright: Jeremiah G. Dys, Esq. May not be used absent express, written permission. Please contact the author for permission to reprint.

On Government and the Tenth Amendment

In explaining the virtues of the U.S. Constitution, Patrick Henry once said, “The Constitution is not an instrument for the government to restrain the people, it is an instrument for the people to restrain the government – lest it come to dominate our lives and interests.”

Henry lived in an age where what the king proclaimed was law. The king was the sovereign and, befitting of such a title, his rule was not to be questioned. Thus, the government conducted at the hands of the king often followed the whims and fancy of the monarch. His rule was not unlike the dictatorial styles of many tyrants today. Few typified this more than King George III, the monarch from whom we as Americans declared our independence in 1776.

Throwing over a despot may be rather simple. The devil is in the details of providing sufficient freedom through accountability. As the patriots of old threw off the chains of a monarchy, a government needed to be installed, lest anarchy become the rule of the day. Our founding fathers chose to install a democracy within a republic, by means of a Constitution.

A constitution is simply a founding document for an organization. Within its words are laid the rights and responsibilities of the institution and its members. With the U.S. Constitution, we see express powers given to the Executive, Legislative, and Judicial branches of our government. But not every power is expressly surrendered to our government.

In fact, the Tenth Amendment recognizes that fact when it says, “The powers not delegated to the United States . . .are reserved . . . to the people.” Thus, Henry’s explanation comes into focus.

Our freedom is at its greatest when government is most restrained. Our government, unique among a variety of forms, does not act upon the whim and fancy of a sovereign. Ours is a government instituted by its people. Our citizenry determines how far the government will reach. Our government is one of accountability.

One of Patrick Henry’s contemporaries, Thomas Paine, made the observation, “Government at its best is a necessary evil, and at its worst, an intolerable one.” We need government to maintain order, to provide for the common defense; however, only in a limited, accountable fashion do we provide for a government to use some of those rights corporately to do that which we cannot do individually. The rights remain our own. Government is not the panacea for a world of trouble.

The more we relinquish our rights to government – expressly or by silent inaction – the more it will come to “dominate our lives and interests.” Exercise your freedom. Restrain your government.

Copyright: Jeremiah G. Dys, Esq. May not be used absent express, written permission. Please contact the author for permission to reprint.