Thursday, June 20, 2013
The No. 1 reason why I look at the RealClearPolitics web page almost every day is the juxtaposition of links to opposing or somewhat opposing views, such as these: Item 1: Obama Readying Emissions Limits on Power Plants. This story describes how the Obama Administration is working as quickly as it can on the complicated task of promulgating regulations that will curb carbon dioxide emissions from existing power plants. Item 2: Climate Expert von Storch: Why Is Global Warming Stagnating? This worthwhile interview includes the frank acknowledgement by one of the leading climate change experts that if global warming does not pick up again in the next five years, after fifteen years of little change despite increasing carbon emissions, the scientists will have to acknowledge, without abandoning their general thesis that man-made emissions affect the climate, that their models were wrong and recognize that either they have overestimated the connection between man-made emissions and global warming or underestimated the effects of other natural phenomena that affect the weather. Over at RealClearEnergy, there was Item 3: King Coal Leaves America for Europe, which begins with reference to the fact that U.S. coal exports have reached record levels, and concludes that "[g]reen energy policy has been a catastrophic failure in Europe, hampering the continent’s global competitiveness without making the continent any greener."
Wednesday, June 19, 2013
In Teleguz v. Pearson, the petitioner has raised as one of the factual issues in support of his actual innocence that a witness gave testimony that the petitioner killed a man in Ephrata, Pennsylvania, but in fact there was no such murder. Judge Jones ruled in the opinion that since it was stipulated that there was no such murder, there was no need for discovery on that point. Apropos of nothing, I have been to Ephrata many times, it is still home of the Hilltop Restaurant, where my high school girlfriend's mom asked me thirty years and a couple of months ago, "you're not going to ask her to the prom, are you?"
Judge Jones of the W.D. Va. has written two recent opinions in which important hearsay evidence was kept out of the case. In Electro-Mechanical Corp. v. Power Distribution Products, Inc., the Court excluded the minutes of a meeting between the plaintiff and a potential customer, finding that the substance of the document along with the timing of when it was created "indicated a lack of trustworthiness," in the language of the business records exception to the hearsay rule, FRE 803(6). In U.S. v. Benko, where Mr. Benko is accused of lying about something someone else did, and that someone else made a statement that he never did it, Mr. Benko is out of luck in trying to get that evidence admitted because the declarant has invoked the Fifth Amendment and refused to testify, the Court cannot require the government to give him immunity and make him testify, and the out-of-court statement is not admissible as a statement against interest under FRE 804(3) because the statement lacked "corroborating circumstances that clearly indicate its trustworthiness." These opinions excluding highly relevant evidence because it was too obviously self-serving to the point of unbelievability are a far cry from what Magistrate Judge Roy Wolfe described to me as the only evidentiary rule of the Western District, "let it in for what it's worth," which I heard from the bench only once in an actual case.