perfidy

James at Outside the Beltway links an interesting piece in the Washington Post about a judge right in my backyard. It seems that maverick judge Ian M. O'Flaherty has tossed out as unconstitutional DUI cases that presume the guilt of the alleged. Naturally, the prosecutor in Fairfax county has issues with this sort of interference:

"We've been really racking our brains, trying to come up with some solution to it," said Robert F. Horan Jr. (D), the county's longtime chief prosecutor. "It's a crazy situation. He is, for all practical and legal purposes, the Supreme Court of Virginia in these cases, even though, on the Supreme Court, it would take four of him" to issue a majority opinion invalidating a statute.

The usual cries of endangering public safety have also been leveled at the judge. But some are sympathetic, pointing out that even though the laws allow the accused to rebut the charges, that unfairly shifts the burden of proof to the accused. Other courts have ruled as O'Flaherty has, and University of Richmond criminal law professor Ronald J. Bacigal said, "I think he's exactly right. There are U.S. Supreme Court cases saying you can't relieve the government of proof beyond a reasonable doubt, which is what a presumption does."

"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.' "

James points out the similarity between these cases and your average traffic stop. However, since most of these are civil cases, not criminal cases, the same standards of proof do not apply. It has always been my view that speed limits and the like are unconstitutional, as they are really a presumption of my incompetence by the government. I've seen plenty of people driving unsafely but under the speed limit. They're free and clear. But a highly skilled nascar driver going five miles over yet in perfect control of his vehicle is breaking the law and creating a public danger.

Another thing that should be ruled unconstitutional is DUI checkpoints. Smacks of fascism, if you ask me.

I think we should nominate O'Flaherty for the Supreme Court.