Thursday, October 27, 2005

A Judge Who KNOWS the Constitution!!

Too bad the fellow's not here in Wisconsin, where the same violation of the Constitution is regularly enforced by the feeble-minded "judiciary," eh? You know: where's Kitty Brennan when you REALLY need a judge?

A Fairfax County judge who believes Virginia's drunken driving laws are unconstitutional has begun dismissing cases, including five DWI cases in a week, and has threatened to throw a veteran prosecutor in jail for arguing with him....

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.

"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.' " ...


Marcus Aurelius said...

Who was it that found rights in the shadows and penumbras of the constitution? I bet they had "qualifications" up the yazoo.

It is my distinct opinion too much is made of Constitutional scholarship. The Constitution is really not that hard to understand. Unfortunately, high falutin attorneys spend soo much time staring at the Document they start to hallucinate.

Now, don't get me wrong other aspects of the job (contracts & statutory interpretation) are much more difficult.

I was officially was neutral on Miers but more and more of what was coming out about her was pushing me to the negative side on her. It is over, now let us get a judge we all can fight for rather than fight over.

Dad29 said...

Actually, it was in Griswold that "the right to privacy" was invented.

I have no idea whatsoever how your other comments relate to the post.