The Countertop Chronicles

"Run by a gun zealot who's too blinded by the NRA" - Sam Penney of

Thursday, October 27, 2005

Who Will Be The Next Supreme Court Justice?


I didn't think it would happen, but Harriet Miers has withdrawn her name from consideration as the next associate justice of the United States Supreme Court.

She claims it is because members of the Senate Judiciary Committee have pressed her to release documents she prepared for the White House and the executive branch. I don't think so. My guess is this has much more to do with the blogsphere, another notch on their belt. Just ask Trent Lott.

Of course, the discussion will quickly turn to whom President Bush will name in her place, to replace Sandra Day O'Conner. The usual suspects, Michael Luttig, Harvie Wilkinson, Michael McConnel, Janice Rogers Brown, etc., of course will all be in play.

But, if Bush is serious about appointing someone outside the usual Beltway/Ivy League circles, I think he may find a jurist right here in little 'ol Fairfax County Virginia with the cogliones to do whats right and respect the constitution.

Meet Fairfax County General District Court Judge Ian M. O'Flaherty (heh, he shores up the Irish votes too, will Kennedy support him?).

What has Judge O'Flaherty done which is so remarkable? He has challanged the beast that is MADD and the local prosecutors office and stood up for basic constitutional principles.

"The Fifth Amendment," said O'Flaherty, 59, "is an absolute protection against requiring the defendant to say or do anything in the course of a trial. . . . The Fifth Amendment means the defendant can sit there, not say or do anything, and at the end of the case say, 'Can I go home now?' "

No other judge in Fairfax -- or elsewhere in Virginia, as far as can be determined -- has joined O'Flaherty. But the judge said some other jurists have told him they agree with him. "I had one judge tell me, 'I'd rule that way, but I don't have the guts to,' " O'Flaherty said. "I told him, 'You should be driving a truck.' "

Of course, no one would normally think all these judges would have understood the Fifth Amendment's (but, then, if they did would Kelo have ever occurred?)

Apparantly, they don't when it comes to drunk driving where the state PRESUMES you are intoxicated if your blood alcohol content is .08 or higher and places the burden of proof on the defendant, often times necessitating their testimony.

As it does in all states and the District, Virginia's drunken driving law states that, for anyone with a .08 or higher reading on a breath test, "it shall be presumed that the accused was under the influence of alcohol intoxicants at the time of the alleged offense."

Prosecutors point out that Virginia's law creates a "rebuttable presumption," meaning the defendant has the opportunity to prove it wrong. But O'Flaherty said that wrongly shifts the burden of proof from the prosecution to the defense.

He's correct. Ever hear the phrase "innocent until proven guilty?"

Well, it doesn't apply to drunk driving cases where MADD has turned into a neo-prohibitionst outfit and pressed for maddenly lower and lower levels at which the BAC would then be presumed to be guilty.

Remember Countertop's Second Rule?

Pigs Get Slaughtered

Perhaps MADD has been feeding at the trough of public acceptance and unyeilding approval for too long. They've gotten a bit greedy these days, as some in the blogsphere have begun to point out (and others in DC unfortunately discovered)

Luckily, in Fairfax County, of all places, we have someone with the courage to stand up to them.

O'Flaherty made it known in July that he felt Virginia's DWI law unfairly deprived defendants of the presumption of innocence if breath tests showed that they had a blood alcohol content of .08 or higher, levels at which people are presumed to be intoxicated.

As a result, Judge O'Flaherty has refused to allow evidence from the breathalyzer tests to convict defendants. If there is no other proof of intoxication - such as failing all the field sobriety tests, etc. - he has been dismissing the cases with cause. Since a dismissal at trial negates any chance of appeal, the Commonwealth's Attorney has resorted to attempting to withdraw the charges prior to trial, once they learn O'Flaherty is the judge. He's put a stop to that as well, refusing their requests and going so far as threatening any future Commonwealth's Attorney who argues with him over it. In total, he has allowed a six to be withdrawn - so that an appeal can be taken to the State Supreme Court - but refuses to allow anymore stating that a half dozen is a reasonable number to try and appeal. The rest, he dismisses if there is no other evidence - beyond BAC - of intoxication.

Similarly, the judge said, "sometimes these tests are taken two hours after" an arrest, and there's no evidence of the blood alcohol content at the time of the traffic stop. O'Flaherty said one way to quickly obtain a blood alcohol reading would be to have a mobile van available with breathalyzer equipment, though he realized that would be costly.

"Criminal law shouldn't be built around saving a buck," O'Flaherty said. "We shouldn't convict people because it's cheaper and easier."


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