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DeVine Law: Offcampuspolitico.com v Politico.com, DNA false exoneration, etc [updated]

Including the coming DNA false exoneration crisis

[Originally published for The Minority Report]

Lisa H. Glassman signed a “cease and desist” certified letter as “counsel” for the publisher of Politico.com with a carbon copy to Michael H. Stabbe, “Esq.” on the letterhead of something called DowLohnes (A law firm we presume given the identification of “we” as counsel, even if the term Attorneys at Law is missing in favor of a non-legal “symbol”, we assume is a registered trademark.), addressed to Stephen Gutowski, owner of The College Politico website.

It seems Politico.com has expended significant resources to promote a domain name that includes the phrase “campuspolitico.” I never heard of it until the spelling-challenged counsel and esquires apparently ashamed to be identified as mere lawyers or even attorneys at law, revealed the massive insecurity of the newest pretentious member of the “mainstream” media.

Politico.com alleges copyright/trademark infringements by The College Politico. An excellent essay on the applicable law in this matter may be found at The Minority Report, but I want to make the case that Counsel for Politico.com has essentially admitted they have no case in the cease and desist letter itself.

Essentially, one cannot demand exclusive use of ordinary words, phrases and acronyms. Having matriculated at The University of South Carolina when some upstart school in Southern California lost their federal case claiming exclusive use “USC”, I am somewhat familiar with the law in this area.

That “politico” has been a word in Merriam-Websters for many years before there was a ‘Politico.com” is a partial defense for Mr. Gutowski, but is not dispositive. Ever heard of the “Coke” trademark? Coke was in Websters before there was a cola.

So, one can trademark a word in ordinary use under very stringent and unique circumstances. The Minority Report essay referred to above explains this in clear detail, but i want to focus on a different assertion by the law firm, where they say:

Politico strives to provide neutral and impartial coverage of news events.

Yes, this is what CBS, NBC, ABC, CNN and The New York Times purport to strive to do. Politico is not unique in its mission statement, nor or they unique in their failure to achieve their mission and in their pretentious snobbery.

They do good work and have good reporters, but on the whole, they are just another outlet of the Drive-By Media that pretends to be a unicorn, i.e. completely objective observer that just happens to consider the liberal world view objective.

If any player in this college campus David and Goliath (albeit I am being quite generous to call Politico.com Goliath) drama is more unique, it is The College Politico as “David”. Mr. Gurtowski clearly identifies his organization as “From the Right Side of the Campus.”

Yet, their coverage is more fair than Politico.com. No person that is completely “objective” could possibly be an informed and educated person. People have different world views and perspectives, and all such views and perspectives are not created equal. The Devil doesn’t deserve equal time and moral relativism with God. Nor do NAZIs and their Holocaust victims.

But what we can insist on is fairness from an honest admission of one’s perspective rather than the intellectually insulting claim of objectivity.

I hope The College Politico files a counterclaim preceded by a “scare” letter from Lawyers clearly identified as such on their letterhead.

The coming DNA false exoneration crisis

The presence or absence of DNA evidence on the corpus delecti no more makes guilt or innocence a certainty than eye witnesses or any other type of evidence, yet in a culture that demands scientific proof of everything, it has become synonymous in the public mind with proof beyond a reasonable doubt.

DeVine Law (pictured) has been warning for years that we will one day have an abrupt comeuppance when some of the convicts released from prison based on DNA evidence or the lack thereof “discovered” many years after the crime was committed, commit new crimes consistent with the old conviction or when other evidence is uncovered that explains the false reliance on the so-called magic bullet DNA “evidence”.

Like anyone else, I am thrilled when any newly discovered credible evidence exonerates a wrongly convicted man, which is why I was restrained in my recent criticism of the U.S. Supreme Court’s first granting of an original jurisdiction habeas corpus petition in an “actual innocence” claim in a Georgia murder case appeal.

But I was also quite pleased last term when the nation’s highest court rejected any claimed right to amorphous DNA testing to convicts appealing their convictions.

DNA evidence is no better than any other and is always dependent on relevance and the particular circumstances. Murderers can kill without leaving DNA and innocent people’s DNA can be all over the crime scene.

Case not closed.

Not every sex crime is predatory

Beware those that want to plant scarlet letters on the head of every person convicted of child molestation. This crime is one of the easiest to allege by manipulative spouses and savvy children, especially since the physical “evidence” is often consistent with normal non-sexual life.

Cynthia Tucker of the AJC stumbles upon the truth in a recent column on this subject.

Interstate Commerce Clause was intended to prevent the current State monopolization of Insurance Industry

I have declared on numerous occasions that Conservatives should agree to no health care reform beyond breaking down the state barriers to interstate insurance sales and federal tort reform as I think these moves would bring premiums down so much lower, even for pre-existing conditions, that the only remaining reforms needed would be on the order of the much less expensive safety net tweaks.

I am truly perplexed as to why this circumstance continues to exist in a nation where the U.S. Supreme Court long ago declared that Congress could regulate a farmer’s growing of his own crops for personal consumption due to its “effect” on interstate commerce. Yet, in a circumstance tailor-made for the oft-used commerce clause, in which the very basis for insurance (large non-claimant pool pays premiums to pay for claimants) is inhibited in favor of limited state pools.

Attorney Andrew Politano explains:

The same Congress that wants to tell family farmers what to grow in their backyards has declined “to keep regular” the commercial sale of insurance policies. It has permitted all 50 states to erect the type of barriers that the Commerce Clause was written precisely to tear down. Insurers are barred from selling policies to people in another state.

That’s right: Congress refuses to keep commerce regular when the commercial activity is the sale of insurance, but claims it can regulate the removal of a person’s appendix because that constitutes interstate commerce.

What we have here is raw abuse of power by the federal government for political purposes. The president and his colleagues want to reward their supporters with “free” health care that the rest of us will end up paying for. Their only restraint on their exercise of Commerce Clause power is whatever they can get away with. They aren’t upholding the Constitution—they are evading it.

Looking forward to the death of McCain-Feingold and the re-birth of Free political Speech

The intent of the First Amendment was to prevent the newly formed federal government from inhibiting political speech critical of its policies and representatives. It was not aimed at allowing profanity in the public square.

The Framers were aware that Congress would want to make laws that protected their incumbency via abridgments of free speech.

Party didn’t matter. So, in a case of extreme projection, Republican John McCain discerned that every senator and congressman, except for him and anyone that had a name, was corrupted by all the money in politics. No matter that the system that allowed this money in politics freed the slaves, won to world wars, defeated the USSR and elected such sterling statesman as McCain and Feingold.

Ronald Reagan would never have run for President, much less been elected, had he been required to walk the Fruited Plain as a beggar 365/days a year for three years.

So, the Democrat Feingold joined the Maverick in, not only restructuring the money in politics, but also, curiously, in prohibiting speech critical of incumbents 30 days or more before Election Days!

If that isn’t call for firing on Forts of the Sumter variety, I don’t know what is, but then, I’m a Sandlapper form South Carolina. Thankfully cooler head have prevailed and even Anthony Kennedy seems poised to join Mssrs. Roberts, Alito, Scalia and Thomas in restoring Freedom of Speech.

Mike DeVine’s Charlotte Observer, Examiner.com and Minority Report columns

A civil/criminal trial lawyer for two decades in federal and state courts throughout the South and presently CEO of DeVine Law Vista in Atlanta, Georgia.

“One man with courage makes a majority.” – Andrew Jackson

Originally published @ Examiner.com, where all verification links may be accessed.

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