Judicial Activism

YOU STATE AND PROPOSE: " I think the best fix is to simply change "not follow the law" too "not follow a specific law." this seams to be a fair trade from your original resolution and the new one you posed in the second round." I AGREE YOU ARGUE: "==="LEGAL JUSTICE is justice according to the law." this argument is irrelevant because it is a judge acting within the laws. my opponent claims it is the judicial branches job to impose justice. I would like to know were in the constitution does it state that it is a judges job to impose justice." I RESPOND: "LEGAL JUSTICE" is justice (1) according to the applicable law, AND (2) within the limits of the applicable law. For example, assume that after a trial the jury convicts me of burglary and that law applicable to the burglary provides for a maximum prison sentence of 10 years; but, thereafter, the judge sentences me to 15 years in prison. The sentence VIOLATES LEGAL JUSTICE because it is NOT WITHIN THE LIMITS of the applicable law. YOU STATE:: "my opponent claims it is the judicial branches job to impose justice. I would like to know were in the constitution does it state that it is a judges job to impose justice." I RESPOND: Here is the Preamble to the Constitution: "The Constitution of the United States of America We the people of the United States, in order to form a more perfect union, establish justice, insure domestic tranquility, provide for the common defense, promote the general welfare, and secure the blessings of liberty to ourselves and our posterity, do ordain and establish this Constitution for the United States of America." http://www.law.cornell.edu... As you can see in the Preamble, one of the goals of the new federal government specified in the Constitution was to "establish justice". To establish justice, a judicial branch and judges were necessary. Thus, I argue that a judges DUTY is to "establish justice" namely, LEGAL JUSTICE, in each particular case. see, http://www.law.cornell.edu... http://www.law.cornell.edu... http://www.law.cornell.edu... Finally, regarding "imposing justice," courts (acting through judges) technically do not impose justice. They decide cases according to, and within, the law that is applicable to the particular case. If the case is decided without any errors of law, the result is considered as constituting LEGAL JUSTICE. YOU ARGUE: "==="The example DOES NOT state that the defendant was mentally ill. It states that he was retarded. 'Mental illness' and mental 'retardation' are not the same kind of mental impairment. Therefore, a 'mental illness' DEFENSE cannot be asserted by the defendant. The law that you cite does not apply in the case." my opponent seems to have misread that article because it states "the defendant, as a result of a severe mental DISEASE or DEFECT, was unable to appreciate the nature and quality or the wrongfulness of his acts." {I would like apologist for the use the term retard I now it is an outdated description of that disease} mental retardation is both a disease and a defect so it is a valid defense" I RESPOND: The defendant in the example was not mentally ill. He was retarded which means a deficiency in intelligence, not mental illness. YOU have read "mental illness" into the example. Here, again, is the example: "3. "9 I was once appointed to represent a naive young man who was charged, along with an accomplice (a burglar on parole), with aggravated assault, a charge which then carried a mandatory three-year prison sentence. They burglarized a lake cabin, took guns, and then drew upon the owner who unexpectedly appeared on the scene. Before the Hon. Donald Odden, a lion on the bench, (whose beloved lake cabin, incidentally, had been burglarized in the past), I argued for a rule departure, simply that it would be immoral and contrary to justice, to send my client to prison: He was retarded. He worked as a part-time garbage man. He was a dupe. Then the prosecutor, John DeSanto, told Odden to do what he thought "was right." Odden then growled at the client, threatened prison if he screwed up, and placed him on probation." http://www2.mnbar.org...; Unless you can provide psychological or psychiatric evidence that a mental deficiency (retardation) constitutes a recognized "mental illness", I contend that the defense that you cite, namely, http://uscode.law.cornell.edu... , does not apply, and is , therefore, not available to, the defendant in my set forth example just above. The law that you cite and rely upon does not apply for another reason. It is federal law. But, the case involved in the above example was an actual case in Minnesota. Therefore, only Minnesota law on defenses to crimes applies. Here is the applicable Minnesota law: "2008 Minnesota Statutes Resources Topics Defenses Insanity Defense Mental Illness, Persons with Popular Names of Acts 611.026 CRIMINAL RESPONSIBILITY OF MENTALLY ILL OR DEFICIENT. No person shall be tried, sentenced, or punished for any crime while mentally ill or mentally deficient so as to be incapable of understanding the proceedings or making a defense; but the person shall not be excused from criminal liability except upon proof that at the time of committing the alleged criminal act the person was laboring under such a defect of reason, from one of these causes, as not to know the nature of the act, or that it was wrong. History: (9915) RL s 4756; 1971 c 352 s 1; 1986 c 444 https://www.revisor.leg.state.mn.us... NOW, THEREFORE, I CONTEND THAT YOU HAVE THE FOLLOWING BURDENS OF PROOF: (1) "Unless you can provide psychological or psychiatric evidence that a mental deficiency (retardation) constitutes a recognized "mental illness", I contend ..." (2) You must cite a Minnesota criminal case involving a "mentally deficient" defendant who asserted a defense under MS 611.026. I can't find one. FINALLY, YOU STATE: ""a SPECIFIC law indubitably apples to the case. But if the judge applies that law in the case, the result will be OUTRAGEOUS and UNCONSCIONABLE for either one or both of the parties." I challenge my opponent to find any such instance were this has happened, or an instance were following the law would result in such an act.{please no cases that have already been overturned}" FINALLY, I RESPOND AND ARGUE: I cite this case: ""3. "9 I was once appointed to represent a naive young man who was charged, along with an accomplice (a burglar on parole), with aggravated assault, a charge which then carried a mandatory three-year prison sentence. They burglarized a lake cabin, took guns, and then drew upon the owner who unexpectedly appeared on the scene. Before the Hon. Donald Odden, a lion on the bench, (whose beloved lake cabin, incidentally, had been burglarized in the past), I argued for a rule departure, simply that it would be immoral and contrary to justice, to send my client to prison: He was retarded. He worked as a part-time garbage man. He was a dupe. Then the prosecutor, John DeSanto, told Odden to do what he thought "was right." Odden then growled at the client, threatened prison if he screwed up, and placed him on probation." http://www2.mnbar.org...; Upon personal knowledge, I certify that the case was not appealed and overturned. John DeSanto was recently appointed to the district court in Duluth, Minnesota. http://www.mncourts.gov... . If you call John for verification that the example was not overturned, SAY HEY FROM TOM. Finally, I contend that if the judge had sent the defendant ( who was retarded and a dupe of his accomplice) to prison for the mandatory 3 years, such would be UNCONSCIONABLE AND OUT..