Twenty States Try to Kill Obamacare for Good

February 27, 2018
By David Lee

FORT WORTH (CN) — A 20-state coalition sued the federal government late Monday, saying the end of the Obamacare individual mandate in the December tax cut renders the law unconstitutional. The lawsuit puts the Trump administration in the uncomfortable position of defending a law that it spent all of 2017 unsuccessfully trying to repeal in Congress.

Led by Texas Attorney General Ken Paxton and Wisconsin Attorney General Brad Schimel — both Republicans — the states say that ending the individual mandate tax penalty in the Tax Cuts and Jobs Act of 2017 effectively guts the constitutionality of the Affordable Care Act of 2010.

They claim that when the U.S. Supreme Court upheld Obamacare in 2015, it said the individual mandate would be an unconstitutional exercise of federal power without the tax penalty.

The states’ lawsuit is, in essence, a bank shot, aimed at killing the Affordable Care Act for good.

“Texans have known all along that Obamacare is unlawful and a divided Supreme Court’s approval rested solely on the flimsy support of Congress’ authority to tax. Congress has now kicked that flimsy support from beneath the law,” Paxton said in a statement Monday evening.

“The U.S. Supreme Court already admitted that an individual mandate without a tax penalty is unconstitutional. With no remaining legitimate basis for the law, it is time that that Americans are finally free from the stranglehold of Obamacare, once and for all.”

Paxton said he hopes the lawsuit will “effectively repeal Obamacare” and give President Donald Trump and Congress the chance to replace it with something with more choices and better prices.

Congress’ ending of the individual mandate “renders legally impossible the Supreme Court’s prior savings construction” of Obamacare, the lawsuit states.

“Even though Congress sought to do something unconstitutional in enacting the mandate under the Commerce Clause, the Supreme Court salvages its handiwork as a lawful exercise of the taxing power,” the 33-page complaint states. “But things changed on December 22, 2017 … the new legislation eliminated the tax penalty of the ACA, without eliminating the mandate itself. What remains, then, is the individual mandate, without any accompanying exercise of Congress’ taxing power, which the Supreme Court already held that Congress has no authority to enact.”

The Internal Revenue Service and U.S. Department of Health and Human Services are co-defendants in the case. Neither could be reached for comment late Monday evening.

Texas and Wisconsin are joined in the lawsuit by Alabama, Arkansas, Arizona, Florida, Georgia, Indiana, Kansas, Louisiana, Maine, Mississippi, Missouri, Nebraska, North Dakota, South Carolina, South Dakota, Tennessee, Utah and West Virginia.

This is the second time Paxton has sued the federal government over Obamacare. Texas, Kansas and Louisiana sued in 2015 over regulations that they claimed illegally tax states to pay a health insurance providers fee or risk losing Medicaid funding. Texas must pay the IRS $120 million per year for Obamacare regulations though it did not expand Medicaid or create a state Obamacare exchange, Paxton said Monday.

From Courthouse News.

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Judge Says Accused Bomber Can Be Force-Fed Drugs

February 14, 2018
By David Lee

TULSA (CN) — Federal officials can force-feed antipsychotic drugs to a military veteran accused of bombing an Oklahoma recruiting office for him to be deemed competent to stand trial, a federal magistrate ruled Tuesday.

Magistrate Frank H. McCarthy granted prosecutors’ request after a hearing Tuesday in Tulsa Federal Court, saying their medical report, filed under seal, met the evidentiary burden required for such an order.

Defendant Benjamin Don Roden, of Tulsa, has refused to take the drugs. His attorney, federal public defender Whitney Mauldin, told the judge her client has religious objections to the drugs and has a constitutional right to be free from taking medication, the Tulsa World newspaper reported.

“Hopefully, we’ll see some marked improvement quickly,” McCarthy said.

Roden was arrested in July, days after a pipe bomb was detonated outside a Tulsa-area Air Force recruiting office after business hours. Windows were damaged and a front door was blasted off of its hinges, but no injuries were reported.

Roden is charged with two counts of destruction of federal property, use of explosives to commit a federal felony, and malicious damage to federal property with explosives.

He was discharged from the Oklahoma Air National Guard in April 2017 and was trained as a firefighter. Prosecutors describe him as an upset veteran who hates the military and is unhappy with the Air Force for not being accepted into the Marines. They say he complained in his Facebook profile that his passport was destroyed and that the federal government tried to keep him from leaving the country because of his “special warfare capability.”

McCarthy on Tuesday denied a defense request to close the hearing to the public due to the discussion of Roden’s medical history.

“I think the public has every right to know what the facts and circumstances of this case are,” the judge said.

Citing the severity of the charges, McCarthy said Roden faces 10 to 45 years in federal prison if convicted.

The judge determined in August that Rosen is not competent to stand trial. Roden’s doctors are asking for four months for treatment with the antipsychotic drugs.

From Courthouse News.

Democrats Jump on Record of Dallas County District Attorney

February 12, 2018
By David Lee

DALLAS (CN) — Democratic challengers to Dallas County’s Republican District Attorney Faith Johnson blasted her leadership during a candidates’ forum Saturday, criticizing her office’s lack of transparency and its treatment of crime victims.

Elizabeth Frizell and John Creuzot — both Democrats and former state district judges — largely agreed in their criticism of Johnson’s year-long tenure. They are running against each other in the March primary election. Johnson did not attend the forum at Paul Quinn College in South Dallas, sponsored by the American Civil Liberties Union of Texas.

“Do you know that crime victims will find me on Instagram and Facebook and say they are trying to contact the DA and no one calls them back?” Frizell said. “They say the DA later calls back and says the case has already been pled. But they wanted to get on the stand and tell their story.”

Frizell said Johnson’s office should always consider what the victims want in a case.

“This is us interacting as human beings,” she said. “This is what I will do as DA.”

Creuzot shared a similar story about trying to contact the district attorney to say he believed a family member needed treatment instead of incarceration. He says he was told the office does not speak to family members.

“Did you know you cannot even go onto the Dallas County website and find out what a prosecutor’s email is?” Creuzot asked. “How about that for transparency? If you do not get a reasonable response, you should have that reported to victim advocacy. You deserve that respect.”

Both candidates supported comments from the audience urging treatment options for drug offenders rather than incarceration.

“Would you commit to finding another way of treatment instead of jail?” attendee Robbie Frazier asked. “It does not treat the problem, and incarceration just makes it worse.”

Frizell said that repeated incarceration is not drug rehabilitation, which “needs to be outside of the criminal justice system.”

She spoke of failures in rehabilitation programs that do not treat defendants’ drug addiction. Citing her experience as a judge, she said defendants often told her they would rather go back to prison then back to rehab because counselors “would talk to us like we are crazy.”

Creuzot said Johnson’s office has a choice on how to handle drug offenses, drawing a distinction between crimes and problems of public health.

“Where does a case come from? When the police file it,” he said. “Is the DA ethically or morally obligated to treat the case as a criminal justice case when it is a public health issue? We do not have to prosecute those cases.”

Creuzot blamed the Republican-controlled Legislature for excessive filing of criminal charges in drug cases, due to “poorly funded on-demand” drug-treatment programs.

Frizell said more than 50 percent of state prisoners have some kind of drug problem. She said there are no mandatory minimum sentences in state court, unlike federal court, so prisoners “do a little time, get out and do a little more time.”

“Do you want to really change this, or do you want to [pad] your resume?” she asked. “You need to have the mindset to change the system.”

Johnson was appointed district attorney by Republican Texas Gov. Greg Abbott 14 months ago, three months after Susan Hawk stepped down to seek mental health treatment. In private practice at the time, Johnson is a former chief felony prosecutor at the district attorney’s office and state district judge. She is the first African-American woman appointed to the job.

Her office is conducting a high-profile investigation into alleged elderly voter fraud in West Dallas. An arrest was made in July after residents complained that they received absentee ballots they did not request, and then a man knocked on their door offering to deliver the ballots. Others complained they were unable to vote on Election Day as someone had mailed in absentee votes in their names. The uncertainty over fraudulent votes resulted in a state district judge sequestering several hundred absentee ballots during local runoff elections in June, a move that delayed election night results.

Frizell has been a consistent critic of Johnson as district attorney. She spoke on behalf of fired prosecutor Jody Warner in November, days after Warner was fired when an Uber driver released an embarrassing audio recording of Warner allegedly berating and belittling him while flaunting her prosecutorial powers.

Appearing alongside Warner at a press conference where Warner apologized for her behavior, Frizell called her an “excellent prosecutor.” Frizell questioned whether Johnson was too hasty in firing Warner.

Saturday’s forum was moderated by Anthony Graves, who was exonerated in 2010 after spending 18 years in state prison, 12 of them on death row. His prosecutor, former Burleson County District Attorney Charles Sebesta, had his law license revoked in 2015 for what the State Bar of Texas concluded was prosecutorial misconduct: withholding evidence as lead prosecutor in Graves’ case. The Texas Supreme Court Board of Disciplinary Appeals upheld his disbarmentin 2016.

Graves now works as smart justice initiatives manager for the ACLU of Texas.

From Courthouse News.

Charges Dropped in Texas Biker Shootout Case

February 8, 2018
By David Lee

WACO, Texas (CN) – Texas prosecutors dropped criminal charges Thursday against 13 defendants in the deadly 2015 biker gang shootout at a Twin Peaks “breastaurant” in Waco, in another setback in the criminal prosecution of over 150 bikers that were initially charged.

The dismissals came hours before a hearing in the case of defendant Jorge Salinas, whose charges were among those dismissed. Salinas and several other defendants sought to have McClellan County District Attorney Abel Reyna disqualified from handling their case, alleging corruption.

Defense attorneys and Barry Johnson, Reyna’s opponent in next month’s Republican primary election, have said Reyna wanted to avoid the disqualification hearing where politically damaging testimony could be given about him, the Waco Tribune-Herald reported. The hearing is now cancelled.

Prosecutor Michael Jarrett told two state district judges that Reyna also intends to refuse seven more cases against bikers who have yet to be indicted.

Reyna also agreed to recuse himself in the case against biker Billy McRee. McClellan County Judge Ralph Strother said he plans to ask Texas Attorney General Ken Paxton’s prosecutorial assistance division to take over that case.

“While probable cause for the defendant’s arrest and prosecution remains based on continued investigation, the state is exercising its prosecutorial discretion in dismissing this matter in order to focus its efforts and resources on co-defendants with a higher level of culpabilities,” Jarrett’s motions to dismiss state.

Salinas’ attorney, Brian Bouffard of Fort Worth, said Thursday that Reyna “arrested, charged and indicted a very large number of these men for purely political reasons, apparently without any intent to take them to trial.”

Reyna steadfastly denied Thursday that the dismissals were motivated by politics. He said more cases may be dismissed, while others would be prosecuted to the fullest extent of the law.

“This decision should not be viewed as folding or giving up by any means,” he said at a press conference. “Rather, this is an effort to narrow in on those more culpable without expending your precious judicial resources on lower level gang members.”

Reyna also denied accusations he showed favoritism to his friends and supporters.

The violent May 2015 shootout between the rival Cossacks and Bandidos biker gangs killed nine and left 20 injured. Thursday’s dismissals come three months after the mistrial of Bandidos leader Jacob “Jake” Carrizal on two organized criminal activity charges.

Carrizal had faced up to life in state prison and has so far been the only defendant to have gone to trial.

The prosecution in his case was dogged by complaints that police failed to timely turn over new audio interview evidence to the defense, who claimed the evidence disproved the prosecution’s assertion that the dispute was over the Cossacks wearing the “Texas” bottom rocker on its patches without permission from the Bandidos.

From Courthouse News.