th they were being hired and we were still doing a lot of the work. in the next stage each of these defined what needs to happen for the afghans to be in contr. a of the aircraft. ..

>> it's my view that civilians will have a very key role in making this happen. that it was a very wise choice on the part of the defense department to take this approach. it's very strategic. it will be effective. and it's not that expensive. and so what you have is a giant effort to generate forces. and now we have invested in the way ambassador dobbins had suggested, almost exactly, to train people to go over and work in it levels, the basic business processes so that the forces can be generated when we are gone. one of the key aspects to that is understanding what the right level is, and each plant is supposed to define what that is to look like.

and from my perspective i look at all 26 points. i met with afghan general, and advisor to see how is it going. i would challenge them towards the end state that was defined. and it was a western solution i was pretty convinced it was the wrong one, because it needed to be, there was an expression, several expression. one was do no harm. another one was afghan good enough, which was in no means at all derogative. it was just meant to say think carefully about what's the minimum requirement necessary for the afghans to be able to run this function on their own in their own way. which is often very different from ours. and they in some cases require lack of 24/7 power, just as an example. you could sit in the ministry of interior and the power would go off. of course, being in the marine corps as long as i have always used to that.

but still, it impacts the solutions that you want to deliver over there. so, in summary i would say that from my own perspective and experience i had over there, which started about 14 months ago, that the moda program has provided knowledge to create the conditions for success on the part of the advisors. they have a systematic training program that i wish all the military that came over would go through. they provide reach back so that when i had issues and i needed help, that i could call back and get that kind of reinforcement and that worked for me on a couple of occasions. we were providing civilian expertise. to me, one of the interesting things when i did interviews when i was over there, as chief adviser, i interviewed, and it was interesting to hear these accounts and inaugural control specialist and acquisition

specialists talk about their passion for coming to afghanistan. i was used to that in the marines, but it just struck me that we had the civilian reservoir of commitment. and they are making a difference, which you here right after i get through, which will be soon. so i think that the moda program is something that is longtime leading. i think it's progressed very rapidly. and i think it is fulfilling a very important mission. it's an opportunity for civilians who might want to serve to have a chance to do that, and to make a difference. coming back after 14 months, i'll say again, i think we are on the verge of success. i think the ministry advisor program over the next two or three years, in my view, is the center of gravity. if we can make that work, if we

can keep reinforcing with trained advisors that are there for no less than 12 months, and possibly longer, which mode enables, and i think that we'll have the ability to succeed. and what will success look like, i've been asked many times, it won't be pretty or perfect. it might not be immediately evident. but i think that we are on the verge investment to keep reinforcing as these ministerial advisers and the civilians batchelder trace and general caldwell have asked for. in my final thing, i would like to thank kelly here ebay -- would you stand up, please? >> kelly is the program manager who is a part-time mom -- well, she was part-time. she is a full-time mom and she was part-time dod civilian win

this thing started and then she became a full-time mom and a full-time dod civilian. and if anyone has made my comments possible, or the outcome to be encouraging, i think it has to be her. there's a lot of other people have already been recognized, and i don't want to take time to go that began but it did want to point out and single out kelly for what she is done and made a big difference in this program. a very singular effort and i hope she gets greatly rewarded. [laughter] [applause] >> thank you, david. we are now going to go to kabul. it seems like an appropriate moment to take you to afghanistan, to hear a recorded message from command of nato training mission in afghanistan, lieutenant general william b.

caldwell, who is also commander of the combined security transition command there. and was the spokesperson for operation iraqi freedom years ago. he's really been a major supporter, contributor to this program, to its manuals into its projects. and we feel very fortunate to be able to share the videotaped message with you. if we could roll tape. >> it's great to be with you today to celebrate the one year anniversary of the moda program. when nato training mission afghanistan was stood up in november 2009, we saw our mission was about teaming with afghans to build an enduring and self-sustaining afghan national security force. though the international committee have been supporting the afghan government and military police for several use, efforts really lacked from a sense of unity, limited resources and even limited expertise. the lessons of the soviet

experience and previous international efforts, ntma adopted a new mindset, teeny, transparency and transition. today we see progress and promise for the future. one of the most important contributors to this achievement is the moda program. the moda pro can has been a key enabler for us to not only achieve progress in the training mission, but literally it's been an absolute game changer. it's what is actually -- we continue to grow and develop the afghan army, air force and police, the forces on track to reach the 2011 milestone with 305,000 will grow another 47,000 over the next year. part of this growth ensures the forest develops key support forces such as logistics, human resources, finance. professionalizing the force is key to creating enduring

institutions. there is a substantial effort to develop sustainable systems and functioning ministries, back in plan, program, budget, and execute ministerial goals. in support of this effort there are about 500 advisors who wake up everyday and go to work in the ministry of defense and interior. advisor support their afghan counterparts to ensure the necessary policies and systems are in place to influence strategic guidance for the present of afghanistan and the ministers. this work includes everything from grain and water and personal system that can identify, track, and manage people across the military and police, to a comprehensive recruiting screening process that validates, and certifies afghans eligible for training. throughout its first year moda support it nta has been critical. moda enables transition from what was a military senior advisers to civilian senior

advisers. the key and necessary step to professionalize the civilian workforce both in the ministry of interior and defense. to date we have literally been thrilled of the moda advisor here in kabul. for example, chris hart uses unique skills and expertise and the defense commissary industry to assist in development of a new ministry of defense slaughterhouse operation which increase production, enhanced efficiency and improved food safety. we officially call him the slaughterhouse of duty. then there's kimberly, who took on a broad responsibilities for organizing the afghan automation integration and education working group. and at night she leads jumbo classes and has become known as the zuma queen. i can tell you the singular contributions have added incredible and lasting impact across the afghan national security force. there are counter -- countless

others who are making a dramatic difference every day. moda personal have the expenses that can't be replicated by us in uniform or by contractors. and that's important as it progresses over the next several years. moda is making a difference. and each of you, has played an enormous part in the ever. from each and every one of us serving here in afghanistan who want to congratulate the moda program on its one year anniversary. we look forward to welcoming the advisors to our team. >> it is now my pleasure to call to the podium michael lumpkin, acting assistant secretary of defense for special operations and low intensity conflict. he has more than 20 years of active duty, military service as a u.s. navy seal, where he held

every leadership position from platoon commander to team commanding officer, and many other experiences in iraq and beyond. it's a great pleasure to turn the podium over the michael lumpkin. [applause] >> first off, it's an honor to be here to celebrate the first anniversary of the ministry of defense advisors program with you. and also to say thank you for each of the advisors for the sacrifices they've made from the past year, and for the accomplishments you have achieved together with their afghan counterparts. the strong partnerships forged by the moda program advisors are a small but vital part of the overall effort to ensure a successful security transition in afghanistan.

this afternoon i want to do four things. i want to review our progress in afghanistan, highlight the role of a moda program. i want to look at some of the challenges that are facing the program today, and to encourage each of you to participate in this exciting endeavor that is making the lasting contribution in afghanistan. as you know, president obama announced on june 22 that the united states would begin a deliberate responsible drawdown of our search forces from afghanistan. the drawdown began on schedule with last month redeployments of two army national guard battalions. the drawdown will include a total of 10,000 troops over the course of this year, with another 23,000 coming home by the end of summer of 2012. the trend its objective in afghanistan remain unchanged. our goal is deny safe havens to

al qaeda, and to deny the insurgents the ability to overthrow the afghan government. clearly the operation against osama bin laden was a great step towards achieving these aims. but u.s. afghan and coalition forces must continue working together to degrade the taliban led insurgency and their strongholds that provide time and space for the afghan national security forces, and the afghan government to assume the lead for afghan security nationwide by the end of 2014. they key to this responsibility, to this responsible afghan led transition is the presence of capability of a 300,000 members strong, and growing, afghan national security force is. and the development of civilian led security ministries that can sustain these forces.

as secretary panetta conference, during his visit in afghanistan in july, these forces are growing in both size and capability. the afghan national army and afghan national police are steadily improving and getting capability to provide security for their own people. ansf has grown by more than 100,000 troops, and the police officers since president obama first announced a strategy in december 2009. and by the end of december 2012, when the last of our search forces are out, another 50,000 afghans will have joined their national army and police forces. as a result of this expansion, there will be actually more afghan nationals dignity forces and coalition forces in the fight than there are today. and substantially more of these forces will be afghan. indeed, by the time this time

next year, for every american soldier in afghanistan there will be five ansf soldiers and policeman in the fight. we recently witnessed a tangible sign of this progress when leaders from both the afghan ministries of defense and interior worked closely with isaf to orchestrate a shift from coalition to afghan led security in seven geographic areas within the country. we are also in negotiations with afghanistan on a strategic partnership that will frame the character of our enduring relationship. it will send a clear and reassuring signal to the region of afghanistan will not be abandoned, and that the united states remains committed to regional peace and stability. as president obama said, we are determined to see this partnership become a reality. so that in the future,

afghanistan is safe, stable, peaceful and secure. i want to emphasize that although progress in afghanistan is substantial, and that our strategy is on track, significant challenges remain. we have dislodged insurgents from key strongholds in the south, and we've improved security throughout much of the north, west, and capital regions. however, we have much left work to do in the east. where the physical terrain, the culture, the geography and existence of safe havens in pakistan represent a complex set of challenges distinct from those than the rest of the country. in addition, only after afghanistan's security institutions are self-sufficient and self-sustaining will it be possible for the afghan government to solidify the tactical gains earned by such a great cost.

and that's with a relatively small ministry of defense advisors program comes in. this select cadre of civilian experts is assisting the afghans who will lead afghanistan's use key security institutions long after the fighting ends. the first team of 17 moda to make such an immediate impact that general petraeus requested 100 more, only six weeks after they arrived. there are currently 47 moda advisors in kabul. so you will still have a chance to join if you haven't. theirs opportunities abound. classes deploy three times a year in march, july and november so you can go ahead and just mark that in your calendar now. i hope you take the opportunity while you're here for those in the audience to meet some of the returning advisors during the reception after this event. moda advisors come from a pool of seasoned professionals with, on average, 23 years of experience.

they represent more than two dozen dod organizations, including all four services, the office of the secretary of defense, and they have passed the rigorous seven-week deployment training program that was outlined in the video. you heard some examples from lieutenant general caldwell, but i want to share a few more stories that demonstrate these unique civilian experts and a difference they're making on the ground in afghanistan. moda advisors rick pollitt and justice land is help the afghan ministry of interior logistics develop and successfully field a logistics readiness tool that provides anp provincial commanders insight into equipment accountability and readiness in their districts. we relied on the corporate was from the moda training program, promote local ownership to help pilot is simple afghan designed, key, afghan designed

track until the result in a 99.6 accountability in a recent audit. moda advisor mike is helping the afghan minister of defense editor develop long range plans to improve gender integration to human rights in the afghan national security forces. currently, only .2% of the ansf are women. and moda advisors effort to increase this number significantly. and, finally, cameron, a licensed architect with washington headquarters service, assisted the ministry of defense counterpart at the installation management director to improve professional engineering, education, through the university of kabul. all of these successes, and a lot more like them, rely on a strong trust-based relationships built between each moda advisor and their afghan

counterpart. each achievement, even the smallest ones, is a testament to the quality of the programs pre-deployment training which emphasizes developing sustainable and locally owned solutions that respects humility, based on respect, humility and empathy. i believe these accomplishments and the moda missions will become more important as the drawdown of u.s. and coalition forces continues. the program empowers afghans to lead and manage their own security ministries, and will point the way to a self-sustaining afghan national security force after 2014. 2014. while limited in scope right now, this programs potential extends beyond the borders of afghanistan. strengthening foreign defense institutions is an increasingly critical element of our overseas engagement. and through inexpensive programs like moda, we can help

partners build effective, accountable and well governed defense ministries. in reality, the benefits our own civilian workforce may prove even greater. went moda program advisors returned to the department of defense positions here in the united states, they bring back new skills, knowledge, and experiences. in addition, their close professional ties with foreign counterparts may help solidify future strategic partnerships between our nation's. for those who participated in this program, it is an experience that you can be proud of for the rest of your life. you will know that you made a very real impact at this strategic juncture in our nation's history. for those of you in the audience who will soon deploy, i want to share a short excerpt of an e-mail written by one of the current moda advisors, shari resnick. she is a u.s. navy rocket

scientist, yes, a rocket scientist. this is a testament of the caliber of the people who are participating in this program. she is now involved in the ansf gender integration effort. her enough gives kind of a sense of what it's like to be an advisor. she writes, although some days here a long, tiring or discouraging, others are equally uplifting, exhilarating and encouraging. i approach each day with passion, and they have all been worthwhile. she continues, when i start to question why i am here, or if this is even feasible, i just remember what the afghans tell me. and afghan major general told me that having people against you is no reason for not doing something that is right. and afghan senior civil servant told me that if i thought integrating women in the army was tough now, i should have

been here during taliban rule. when she was running underground schools for girls, she thinks this is easy. einstein was right, it's all relative. and we moda are making a difference every day. while these achievements and sentiment are real, i want you to understand that the programs limitations and challenges to, because right now they are real as well. after all, this program has only completed a single year in practice. it's still in its infancy. and like many new ventures, it has encountered setbacks and we've identified opportunities for improvement. as we enter year two, i want to moda program to be a true learning organization. seamlessly adapting and adjusting to the new requirements and lessons learned. and i know a lot of that happened here today. one reality is that we came to the table late. we should have established

something like moda years ago. and, frankly, not just in afghanistan but also in iraq. our military and contract work in both nations would have been greatly enhanced if we had a civilian program like this in place from the very beginning. that's why we need to institutionalize this capability, so that any future we can be on the ground on year one. we have learned much about building stronger civilian military and in the agency command-and-control structures in places like south, and africom, and which national we should use these lessons in israel advising. personnel management is another challenge. we've had some problems we integrating moda volunteers acted all organizations in ways that leverage the experience to the benefit of the department. this needs to be fixed. dod components must recognize

moda and other supply deployments as an enormously worthwhile stage in an employee's career. we need to instructed the civilians who deploy are properly rewarded for that experience, and are welcomed back into the organizations with appropriate aftercare. i know that to some degree this will require some cultural change, making dod civilians more expeditionary. it means encouraging more dod personnel to undertake overseas missions, helping managers we organize and value these deployments, and to better meet the needs of the people who undertake them. as you can see by the diverse group of speakers this afternoon and throughout the day, the moda program in afghanistan has developed an was executed by a team of teams. they deserve special recognition for their collaborative efforts to turn this good idea into a reality and gives us the ability to so great the one year

anniversary today. first and foremost the program would not be possible without the advisors and the support from their families. these people willingly volunteered and sacrifice for this important mission. of the inaugural class of 17 advisors, eight volunteered to stay for a second year in afghanistan. a special thanks goes out to the u.s. institute of peace for hosting this important event, intend to support moda training with its lead in structures and course content. as tara noted earlier, the development of this unique ministerial adviser turned program actually began during a small meeting posted at usip and 2009. usip's expert on ministerial advising, not yet her stalker deserve special recognition for her role in developing the corporate of the heart of the string program.

the center of accomplice operation was in the dash and a key participant in the 2009 been. the centrist have tended objectives and, of course, implementation plan. the cco continues to play a vital role in moda in its outreach and recruitment through its portal on prism. also want to thank the office of secretary of defense for personnel and readiness, who worked tirelessly to develop and manage and execute moda's current training course. this groundbreaking training program led by pr director of training and readiness strategy, frank digiovanni, continues, or they call him d. nine, continues to receive broad accolades and build a defense wide gap and advisory trinket without frank, the corporation and many afghan role players, discourse simply wouldn't exist today. in addition, pnr's civilian

expeditionary workforce team may be advisors deployment program possible. and they continue to offer day to day support for our deployed advisors. the moda's success is a tangible sign of how viable the civilian expeditionary workforce model can be, and i look forward to continue the close partnership as we expand this program. lieutenant general caldwell remains steadfast advocate for the moda program. and his staff supports the program at every stage of the advisory effort, from requirement developments, advisors the selection, and support to advisors during their tour in afghanistan. finally, we need to applaud the afghan people. who worked tirelessly in these afghan ministries every day, hoping from the ground up. they are the future of afghanistan, and are the center of the moda program. they are resilience and

tenacity, despite numerous obstacles, will ensure successful transition and a bright future for afghanistan. while my participation here is delay the reception slightly, i would like to bring, take my comments to a close. i hope today has persuaded some of you to join the moda program for those who are not already involved. whether as an advisor, a training partner, i reach back resource, or even a recruitment volunteer. the moda team of team needs your help, and you can be part of this historic pragmatic and innovative initiative in a variety of ways. the program trifled and recruitment flyers are outside. i encourage you to take one. and kelly who was recognize earlier come and her team will be available to answer questions for those during the reception. bear in mind that the application deadline for the

march class is september 1, which is just three weeks away. so we are still taking applications. sought want to thank you all very much for your participation and everything that you do to support the moda probe ran. you. [applause] -- the motive program. thank you. >> we have just a couple of last items to do before releasing those of you who are here to the reception. those of you who are at home to your kitchens. we cannot get you in the reception, but we are glad that you are watching today. there are people here with orange stickers, and that enables you to find out more about all of this, our request media interviews within. i will go all of the press people who are here, but if you do want a follow-up interview, please see me or somebody with an orange sticker on their badge. to close out, i do want to

recognize the returning advisors from this first year, harold, scott lewis, wesley lewis, those extending their terms, cameron, kimberly eckholm, john, clinton gilmore, christopher hart, alan johnson, richard pollock, where she'd. and as a final close i would like to ask the moda advisors that are with us today, and one spouse of mark jones, wherever you are, i think you're there, deserve a special recognition. i would like to ask the following advisors to stand and then lead us out to the reception, and join me in a round of applause, please, for the returning advisors. david clifton, george dryden, john hawke, charles heiden, mark

jones, and mrs. mark jones, and then the extending teresa sorensen who is here. if you would join in a round of applause, and they will lead you to food and drink. thank you very much. [applause] >> [inaudible conversations] [inaudible conversations] >> the u.s. commission on civil rights is wholly a briefing this morning on eminent domain abuses. eminent domain is the right of government to take private property from public use. last week the justice department brought a lawsuit against the

city of joliet, illinois, accusing public officials of trying to reduce the number of black residents are using eminent domain to seize a federally subsidized housing development. this is live coverage on c-span2 but were expected to start in just a moment. [inaudible conversations] [inaudible conversations] >> will get started shortly. we're waiting for one of our panelists. [inaudible conversations] [inaudible conversations]

[inaudible conversations] >> let's wait a few minutes and then i will get started. [inaudible conversations] [inaudible conversations]

[inaudible conversations] >> i will take that as a good comment. >> the anniversary of the day me and my wife met. >> really? any other anniversaries? i think it's also the day julius caesar was born. well, mr. shaw has not arrived in the interest of time we will get started. good morning, everybody. as we know this is the auspicious date of august 12. this is a meeting of -- [inaudible] yes. this is a meeting of u.s. commission on civil rights. it is now 9:35 on august 12. this meeting is taking place at the commission headquarters located at 624, ninth street northwest in washington, d.c.. chairman marty castro. the first part of today's me will be devoted to a briefing on the topic of the civil rights implications of eminent domain abuse. immediately following the

briefing, we will conduct our regularly monthly business been. before i begin introductions of the panelists and our printing, i would like to do something that is always a good thing to do is welcome a new member to the team. i'd like to welcome david come on this commission was just appointed about a week ago today i believe. we are glad to have you onboard. today's briefing features four distinct panelists. each panelist will speak in turn for approximately 10 minutes. i will be the timekeeper. i have developed a specialty at that from our last briefing, until. after all, the panelists have had their presentations made, we will then turn to our commissioners for questions. will have approximately 50 minutes of questions that will be commissioners asking the panelists. as at the last briefing what i would do is i will acknowledge commissioners who raised her hand and i will be fair and balanced in terms of the opportunity. unlike the last briefing we'll have more time here. so if the commission was to ask a follow-up question to the original question, please do so.

if you want to fall to your follow-up they will ask you to hold onto the next times would try to make sure that at what has a fair opportunity ask questions to out the period. so the speakers, you'll see these little traffic lights in front of us. so when the light goes from green to yellow, that means it's time to start wrapping up. when it gets to read, of course that means stop. when you see yellow that means you have to manage remain in your time. i will do my best to strictly enforce that so we have a full opportunity to hear from you, at the same time have commissioners ask their questions. with those bits of housekeeping, let me just add that this is a briefing that was proposed by our colleagues in the former commission majority, and in interest of bipartisanship, we are pleased to be able to do this briefing today because it does raise some very interesting issues. issues that we all have reviewed the material that were distributed for him. we are very much looking forward

to hearing the statements. i know have a lot of questions to delve into this topic. but we're pleased to be able to do this in a bipartisan fashion. our first panelist is ilya somin. and associate professor at george mason university school of law. professor somin's research focuses on constitutional law, property law, and a study of popular participation. and its implications for constitutional democracy. among his many accomplishments, in its amicus brief on behalf of the urban planet scholar jane jacobs, which was cited by the sub in court in his majority opinion in kelo v. city of new london. our second panelist is j. peter byrne, a professor of law at georgetown university law center. he teaches property, flanges, historic preservation and constitutional law. in addition he is faculty truck of the georgetown climate center, and at the georgetown environmental law and policy center. and i visited georgetown last month and it's a beautiful campus. i had never been there. our third palace is not here

yet. but i will get his background when he arrives so he can immediately go into a statement. hilary shelton. mr. shelby lasers at the director of the naacp's washington bureau. and senior vice president for advocacy and policy. the naacp joined an amicus brief in support of the plaintiffs in the kelo case and has testified before congress regarding the civil rights implications of eminent domain use. our final panelist will be david beito. he is a history professor at university of alabama. much of his academic work is focused on african-american history in the 20 century. he is also chairman of the alabama state advisory committee. is what good does that because as a former sag member, sector as well, i'm pleased to see you here. it's something the commission wants to do is engage more of the work we're doing. is hosted of good to have a member of our extended civil rights commission family at the table. also, professor somin understand is the spouse of one of our special assistance, so we have family at the table and we

always appreciate having that. in his presentation, professor beito is going to explain the work of this alabama state advisory committee on this topic. it's already conducted two public hearings on the subject of the eminent domain use in his state. so we're looking forward to hearing about that. and with that i would like to ask professor somin to begin your remarks. >> thank you, mr. chairman. i'd like to start i thinking chairman castro, vice chair, and other members of the commission for your interest in this very important issue. president obama has written that our constitution places the ownership of private property at the very heart of our system of liberty. unfortunately, over the last several decades, both of course and often legislatures as well have routinely consigned property rights to second class status, usually failing to give them the sort of protection that is accorded to other individual constitutional rights.

it is particularly appropriate, therefore, for the u.s. commission on civil rights to consider this issue here because property and the ownership of it was actually at the heart of the conception of civil rights that underlay the enactment of the 14th amendment. it was central to the rights of the framers of the amendment hope to guarantee african-americans and other minorities. in my presentation, i will first briefly speak about the constitutional law of eminent domain, particularly with respect to the public use clause of the fifth amendment. then i will talk and a bit more detail about the impact of eminent domain on racial minority groups, which both historically and today has often inflicted great harm upon them. and, finally, i'll briefly talk about the reforms that have been enacted since the supreme court's decision in kelo v. city of new london, and explain why those reforms, while the have improved the situation, in many cases do not go far enough

to fully protect the rights of minorities and others threatened by eminent domain. so i will start off by looking at the law of eminent domain, with respect to the public use clause of the fifth amendment. that clause like similar clauses in the state constitutions allow taking and condemnation of private property only if it is for a public use. there's been a long-standing debate as to whether public use means in actual use by the government or by the general public, or whether it merely means anything that might potentially benefit the public in some conceivable way. during the founding era there was not a lot of discussion of the meaning of public use. however, most jurists and commentators did have an understanding that taking the transfer property from a to b. as he was sent from one private individual to another, that those were not permitted by the constitution. perhaps more relevant to our current debate is the fact there was a lot more discussion of

this during the time surrounding the enactment of the 14th amendment in the 1860s. and, of course, its the 14th amendment which applies the public use clause and the rest of bill of rights to state and local governments, the government entities that can dust the vast majority of taking. during that period, opinions and certain was divided. however, as my recent research suggests, the majority of state supreme courts and also the majority of treatise writers on this subject of eminent domain took the view that public use does in fact have to be a used by the government or at least by the general public, not merely something that might benefit the public in some way. moreover, as i've already noted, the framers of the 14th minute, one of the principal reasons for wanting to incorporate the bill of rights against state governments was to protect the property rights of asking americans and also by supporters of the union in the south against the depredations

of state governments that were threatening those property rights in many ways. and so it would not have made sense given that objective to apply an interpretation of public use that essential that state and governments, for whatever reasons they want. those other entities the amendment was supposed to constrain and prevent from engaging in a jesus. now, unfortunately modern supreme court cases are the last 50 or 60 years, particularly the berman case in 1954 and most recently the kelo case have taken the view that a public queues is almost any potential public benefit of any kind. had even taken the view that it is not even the case the government has to prove that the supposed public benefit will actually be achieved. in my written testimony i described in some detail why this modern jurisprudence is deeply flawed. here i would just make one point about it, and that is that their position really makes very

little sense given the whole point of having a constitutional right in the first place. the position of the supreme court is that the definition of public use is largely left up to state and local government. but, of course, the whole point of having a constitutional right is precisely can -- to constrain, so it makes no sense to leave up to that very same government the definition of the scope. and, of course, the court hasn't taken a similar view with respect to any other individual right in the constitution. this is a unique case almost. now, given the state of affairs for over several decades the supreme court and lower federal courts have given very little protection to property rights. there has been a tremendous social impact on americans of all racial and ethnic groups. however, by far the biggest impact has been that on racial and ethnic minority.

and this has been recognized by scholars, activists and others from across the political spectrum. since world war ii, hundreds of thousands of people have been forcibly displaced by polite condemnations, and also by economic development takings of the sort that the supreme court approved in the trade came? but the vast the good of those people were forcibly displaced are, in fact, called poor african-americans or hispanics. during the 1950s and '60s, the prejudice in these sorts of takings was so blatant that urban renewal takings were referred to by many people as negro removal. today, minorities continued to be disproportionately victimized by polite condemnations and other takings of that type. in my view today, the motive is really open and explicit prejudice against minority. however, the political weakness of the urban minority poor is a big factor and the reason why

they tend to be targeted for these sorts of condemnations. and that political weakness is of course at least a part of a consequence of the prejudice and discrimination that these groups have suffered for decades in our society. and in most cases when people are displaced by these condemnations, although they do get some compensation payments, they are left off significantly worse off than they were previously because the payments rarely, if ever, fully account for their losses. in recent years, in addition to taking areas which one might consider to be truly blighted, in many states the definition of blight is expanded so much that almost any area can be declared blighted and taken. in recent years courts have ruled that such areas as downtown las vegas and towns pressure and time square in newark city are blighted, thereby justifying condemnation in those areas. and, of course, if times square

is blighted than almost any area could be so consider. in addition to like takings, a. economic development takings of this sort up help intranet also tended to most affect minority. some people have argued that takings i actually benefit the minority poor, because they promote economic growth in their communities. i think this argument is great overstated for a couple of reasons. what is it the sort of condemnations often actually destroyed far more economic asset than they create. they routinely destroy large numbers of businesses, schools, homes, and other valuable assets for the committee. second, in those situations where there is a meritorious private development project that is likely to produce more growth than it does places, the market has good methods to allow developers to acquire the property without resorting to eminent domain, methods that are superior to eminent domain. i discussed this in my written

test mike and i'm happy to discuss it further in questions. finally, it should be noted that respect for property rights is itself an important engine of economic growth. recent research in urban economic and development economics strongly suggest that areas with respect copyrights see more investment, people are more secure in their homes and businesses, and that tends to promote growth were as an constrain government in copyrights are reassortment of them tends to have opposite effect. economic growth is an important objective, and so is the removal of blight. however, i would argue that we do not need to destroy a community in order to save it from blight. there are more humane and also more effective methods of alleviating blight and use of eminent domain, and ones that don't forcibly displaced a large number of people. in recent years since the supreme court's kelo decision in 2005, some 43 states have acted

new eminent domain reform legislation. and some people have said this solves the problem of eminent domain abuse. i wish that were the case, but for the most part it is not. as i discussed more fully in my written remarks, the majority of these new reform laws actually will have little or no effect. they claim to ban economic development taking, but they allow the very same types of takings to go on under the name of blight condemnation, with blight being defined so broadly that pretty much any area qualifies. even in states which have limited the definition of blight to areas that a lay person would consider blighted, the minority poor still tend to be at risk because of course many of them tragically to live in communities that fit that definition. only four states have completely banned all white condemnations, and, therefore, only in the states are the rights of the poor against these sorts of takings completely secure. i think any aftermath of kelo

there has been some genuine progress made, and certainly public awareness of this decision has risen. however, there's a great deal more work to be done before we can fully guaranteed constitutional copyrights to all americans, particularly those are most vulnerable, such as the minority poor. so i very much welcome the commission's interest in this issue, and i hope your interest will stimulate further discussion and further and more effective reform in this crucial area. thank you very much. >> to fester byrne? >> -- professor byrne? >> thank you, chairman castro and members of the commission, appreciate the opportunity to speak with you today. this hearing addresses claims that the use of eminent domain for economic development unfairly and disproportionately harms racial and ethnic minorities. professor somin has a remedy

which reprinted all eminent domain for economic development, including a nation from blight requirements. in my view, this is a non sequitur to remedy and nonexistent problem. the claims that eminent domain unfairly harm the minorities draws on history of urban renewal prior to the 1960s and, indeed, many african-americans and others were displaced by publicly funded projects that bulldoze their homes in largely failed attempt to modernize cities. justice clarence thomas' dissent in kelo v. city of new london for the audit the use of emmett domain for economic development would inevitably harm minoriti minorities. such concerns in our time are seriously misplaced. read-a-thon projects using eminent domain continue to be an invaluable tool for maintaining the economic competitiveness and livability of the urban areas where property ownership is fragmented and where minority's live in large numbers.

the discriminatory elements of older from an -- generally prevalent to click live in the 1940s and '50s. and have been largely eliminated either growth and part of african-americans and other urban minorities as well as the change physical relations between the federal government and local governments, the fx which has been to give greater control over redevelopment projects to local local processes. use of eminent domain rarely now apply to residences. today requires political consent and community buy-in. eminent domain is a crucial legislative power exercised by governments around the world dating back at least to roman times. in a passionate it empowers government for the construction of networks and the assembly of large tracts, even private owners do not wish to sell or hold out for excessive payment. under our constitution, owners are protected by the requirement that the government pay them just compensation.

the meaning of the takings clause of the fifth amendment related taking property for public use long has been controversial. but no, and i repeat no supreme court decision contradicts the holding of kelo, the public use includes publicly approved condemnations for economic redevelopment of economically distressed areas. the quality of redevelopment projects of course varies, but recent successful projects can be found from the ferry building in san francisco to times square in new york. economic revitalization of urban areas tends to aid poor minorities who disproportionately dwelt in cities by increasing employment and tax revenues for education and city services. without emmett, such eminent domain, large-scale development projects can occur only on greenfield sites, on the edge of cities, exacerbating urban sprawl and pushing new employment opportunities further

from urban minorities. political realities have changed dramatically since the urban renewal period. minorities have secured significant political power in nearly every u.s. city, as was increased influence in private real estate markets. redevelop projects have largely come under control of local governments as federal money and direction have disappeared. local officials tried to avoid displacement of homes because of negative political repercussions and expensive litigation. federal and state statutes had many instances have increase the payments due property owners about what just compensation requires. these circumstances the condemnation of homes is rare and has little or no identifiable ethnic or racial character. the plaintiffs into kelo case were white middle-class people which explains a good bit of the political hysteria that surrounded the decision. the changes in the political of our economic government can be seen by comparing the urban renewal in southwest

washington, d.c., in the 1950s, approved by the supreme court in berman v. parker with the use of condemnation in d.c. today. a massive condemnations bulldozing and reconstruction of southwest washington comprised a complex episode with many facets, but poor african-american residents seem to have suffered this portion displacement. at that time there was no democracy or elected government at all in washington. statute authorized the project was enacted by congress where d.c. has no representation, and till today which is a good topic for this commission to take up. and the members of the redevelopment land agency decade of the project were appointed by the federal government, or their d.c. appointees. the most controversial exercise of eminent domain in washington, d.c., in the past decade has been the condemnation of stores in the sky abandoned strip mall, to permit the construction of badly needed private supermarket for an underserved community.

that action, although bitterly contested in court by some owners, was supported by many members of the local community, specifically approved by the d.c. council which is a majority, which was majority african-american membership, and signed by mayor anthony williams. although specifically exercised in order to convey the land where private developer would be absurd to suggest that the case presents a civil rights issue appropriate for consideration by the u.s. commission on civil rights. but it would come within the kind of concerns of professor somin, to which i will return. similar observations can be made about the use of eminent domain by the dudley street neighborhood initiative in boston to assemble land for affordable housing projects. nowhere is the reason that development are more likely to harm minorities and condemnation for traditional public uses. many of the most brutal condemnation in the urban

renewal period were accomplished for highways and public housing where the government would own site. government has the same general incentive to seek less expensive or flourishing lands for condemnation, would ever be used to be made. if the goal really is to protect minorities, why are the proponents not seeking to constrain the use of eminent domain that have historically been of most harm to minorities? yet legislation recent introduced in congress, h.r. 1433, ignores these exercises of eminent domain for highway construction and other public projects while prohibiting economic develop that gives him power to aid in low income people. it also protects speculative ownership of vacant land. there's no special protection offered to residences. the case against eminent domain here has been advanced large on the basis of advocacy by libertarians for whom i have great respect for their principled positions they take. which broadly oppose the use of eminent domain because they

value private property more highly and local democracy. the evidence that they marshal such as the lord victimizing and vulnerable presents ambiguous data is highly colored language. the study shows no more than commuters are somewhat more likely to pursue redevelopment in poor areas than in more affluent ones. it does not sure properties were taken. ..

>> one might find more procedural protections or compensation to residents and commercial property owners. one could mandate minimum payments to tenants of, who don't own their own property who normally receive no compensation when rental housing has been condemned. the fair housing act be amended to clarify it applies to condemnation of residences without regard to intent, a topic pursued by a student of might be in a paper -- mine in a paper that's cited in my talk. they do not meet the agenda of property groups driving the issue which to limit further the

powers of government to the court in favor of private ownership. proponents, rather, would deprive the d.c. government of the power of eminent domain. in a world of growing economic inequality and a political climate demanding cutting taxes as well as medical and pension benefits, it is unfortunate we are spending this time discussing the nonissue of the effect of eminent domain on minorities, and i look forward to discussing all aspects of that in our question period. thank you. >> mr. shaw? >> thank you, chairman castro. ladies and gentlemen of the commission who invited me to talk about civil rights violations of eminent domain abuse. my name is hillary hilary shelton, a most widely recognized grassroots base -- [inaudible] we're locate inside every state in our country. the naacp washington bureau is

our federal legislative and policy arm. given our nation's sad history of bigotry and the basic disregard of too many elected officials to the concerns and rights of ethnic minority americans, it should come as no surprise that eminent domain has been misused for centuries against racial minorities and the economically disadvantaged at highly disproportionate rates. although nobody knows the exact number of people displaced through eminent domain across the nation, everyone seems to agree that african-americans are disproportionately affected. it is estimated between three and four million americans have been forcibly displaced from their homes. it should surprise no one that a vast majority of these people are racial and ethnic minorities. another study says between 1949 and 1973,2 -- [inaudible]

displaced one million people, two-thirds of them african-americans making african-americans five times more likely to be displaced than they should have given their numbers in our population, unquote. the naacp has a deeply held concern that the newly sanctioned expansion of the use of eminent domain to allow the government or designee to take property simply by putting the property to a higher use as approved in the supreme court in the 2005 decision will foster more discrimination as it sanctions easier transfers of property, wealth and community stability from those with less resources to those with more. the history of eminent domain is rife with abuses specifically targeting racial and ethnic minorities and poor neighborhoods. indeed, the displacement of african-americans in urban renewal projects are so intertwined that oftentimes urban renewal was often referred to as black removal. sadly, racial and ethnic

minorities are not just affected more often by the exercise in the domain power, but we are almost always affected differently and more profoundly. the vast disparities of racial and ethnic minorities who have been removed from their home due to eminent domain are welcome wl documented. in my written testimony, i give several examples of instances in which racial and ethnic minorities have been displaced at disproportionate rates through eminent domain, but for brevity's sake, i hope you will review my written testimony. many who observe these patterns throughout our history contend that the twisted goal of the majority of these displacements is to segregate and maintain the isolation of poor, ethnic minorities and otherwise outcast populations. furthermore, low income neighborhoods are often easier to accomplish because these people usually lack the resources to effectively contest

the actions politically or in our nation's courts. look at areas with low property values when deciding where to pursue projects. thus, the state or local government gains more financially when they replace areas of low property values with those of higher property values. thus, even if you dismiss all other motivations allowing municipalities to pursue eminent domain for private development as well as was upheld in the u.s. supreme court in the kilo decision will clearly perpetuate, not exacerbate the disparate impact of african-americans and the economically disadvantaged in our country. as i said in the beginning of my testimony, not only are african-americans and other racial ethnic minorities more likely to be subject to eminent domain, but the negative impact on these men, women and families is much more severe. first, the term just compensation. when used in eminent domain questions, it's almost always a

misnomer. the fact that a particular property is identified and designated economic development almost certainly means that the market is currently undervaluing the property or the property has some trapped value that the market has not yet recognized. moreover, when an area is taken for economic development, low income families are driven out of their communities and find they cannot afford to live in the revitalized neighborhoods. the remaining affordable housing in the area is almost certain to become less so. when the goal is to increase the tax base, it only makes sense that the previous low income residents will not be able to remain in the area. this is borne out of not only the common sense, but also by statistics. one study from the mid 1980s showed that 86% of those relocated by the exercise of eminent domain power were paying more rent at their new residence with the median rent almost doubling. furthermore, and to the extent that such exercise of the taking of this power is more likely to

occur in areas with significant racial and ethnic minority populations, the effect will likely be destabilized organized minority communities. the dispersion, this dispersion both eliminated or at the very least dramatically undermined estimates of community mechanisms that has the dehe tore crouse effect on these communities' ability to exercise what little political power they may have established. it will also hinder the development of stronger racial and ethnic minority communities. one's own community financially and otherwise directly correlates with the confidence of one's ability to realize the fruits of such efforts. as i have discuss inside my testimony, too many of our communities, racial and ethnic minorities, the elderly, the low income have witnessed an abuse of eminent domain powers that has too often been devastating. given the numerous chronicles of abuse, it is the hope of the

naacp that all responses, legislative, administrative and others so address eminent domain abuse be educated and well informed by our shared history and challenges. we need to insure that some segments of our population that have too long been muted in the issue have a voice. we need to understand how it has been too easy to exploit these communities by imposing eminent domain not only in pursuit of economic development, but also in aim of addressing blight. we also need to make sure that any compensation is fair and equitable and will not result in those who have been displaced being worse off. in considering the interests of our communities, we raised broader concerns with the use of eminent domain for any purposes including those traditionally viewed as public purposes such as highways, utilities and waste disposal. even these more traditional uses have dis proportionately affected the poor, racial and ethnic minorities and working

class families. furthermore, it is not only our owners that suffer, but also our representers. whether they are small businesses who are often provided no protections and pay an uncompensated price even when eminent domain is imposed. for those reasons as the majority in kilo suggests, there must be a sufficient process as well as protections for racial and ethnic minorities and low income communities. the process must be open and transparent, and the full participation of those potentially impacted communities need to be guaranteed as well as fair compensation must be given. fair or just compensation should include replacement costs, not just technical appraisal value. we need to insure compensation for the loss of goodwill of a business and to fairly compensate for the length of time a business or family has been at that particular location. this is the voice of our communities that all communities observe. thank you again, chairman castro and commission members, for

allowing me to testify about the naacp's position on the civil rights implications of eminent domain abuses. the naacp stands ready to develop policy to end eminent domain abuse on concerns like building affordable housing, communities with good public schools and effective acts of the high quality health care system, small business development, opportunities in the growth and a significant available living wage job pool. again, i thank you very much for the opportunity to speak with you, and i look forward to your questions and our discussion. >> thank you, professor shelton. >> i've got three handouts here, i've got ten of them, so maybe a couple of you could share. thank you, chairman castro, for inviting me here today. it reflects the spirit of partisanship that we also found very much in alabama where we decided to pursue this unanimously; democrat,

republican, black and white decided to pursue this issue. let me start by saying that i speak for myself today rather than in my capacity as chair of the alabama advisory committee. i have little to add to ilya so-in min's -- somin's very insightful overview. i'm not going to revisit this these issues, at least in my talk right here, or even really talk much about conventional eminent domain or eminent domain as conventionally understood. rather, i want to highlight a generally overlooked threat to the property rights of the poor and vulnerable. for lack of a better term, this threat could be called eminent domain through the back door. now, we decided to pursue this issue several years ago, the advise advisory committee, and as i said, all of us agreed that this was an important issue, and we've had two public forums. the first was in 2008 which was at the historic 16th street

baptist church in birmingham. and the witnesses at that meeting recounted some disturbing examples of how blacks were losing especially in the city of montgomery, we gained more and more information coming out. blacks in the city of montgomery, a city often called the cradle of civil rights, were losing their property through an extensive application of section 1153b1 of the alabama code. and i quote that more extensively in my longer paper. and this provision leaves a major loophole for the indirect taking of property outside of conventional eminent domain. if a local government deems a property structure blighted or a nuisance. now, in contrast to standard eminent domain, montgomery property owners -- and that's what we especially focused on

because that's really problem to us seemed greatest, the complaints seemed to be the most extensive -- montgomery property owners on the receiving end of this section 11-53b1 do not have a right the compensation even in theory. once declaring the property a nuisance, the city typically demolishes the structure and then bills the owner, often by slapping a lien on the property for the cost of demolition including the carting away of rubble. because the owners are often poor and many cannot atord to pay -- afford to pay and, thus, have to sell or abandon their property. all right? now, at our forum if you go to the next slide, please -- oh, yeah. there's a a quotation from frederick douglas that was in my longer paper, but it does reflect the concern for property rights in the history of civil rights, and i think it's

something that we could all learn today, um, about application of property rights regardless of economic class. we hold the civil government to be solemnly bound to protect the weak against the strong, the few against the many and to secure the lumbar blest subject -- humblest subject in the full possession of his rights of person and of property. all right? of course, douglass was not referring to slave openers there, he believed that was man stealing, that was theft of legitimate property or people that own od themselves. -- owned themselves, in fact. go to the next slide, please. this is the presentation given by a developer in the montgomery. i wish you could see it a little bit better. but he showed on a map he demolitions through this section 11-53b1 in a single year. many were in a small area of

montgomery's most heavily black areas including rosa parks' old neighborhood which is in that area. now, another witness who testified at another forum that we had which was in montgomery was, actually, this was at the montgomery meeting as well. we had two meetings first in birmingham and then the second one in montgomery. and this was presented at the second meeting. now, another witness we had was jamie mccall, and he was a rarity among montgomery's property owners threaten with the demolition of their homes. he, he decided he was going the fight back. a little bit about his background, he had scraped together a living and still is as far as i know by salvaging raw materials from historic homes and then selling them the private builders. finally, he, over time he's able

to accumulate enough money to purchase two acres of land in montgomery on a very busy thoroughfare, and he started to build his dream home, what he called his dream home. he did the work himself, he used materials accumulated in his salvage operations including a supply of sturdy and extremely rare long-leaf pine. eventually, his dream house, what he called his dream house took shape. he built it very much incrementally. from the outset the city showed unremitting hostility, and he almost lost count of the number of road blocks that it threw in his way including a citation for keeping the necessary building materials on the back of his property which is not even visible from the road. more seriously, in 2007 he was charged under section 11b-1 on the grounds that his home, then under construction, was a nuisance.

please go to the next one. all right? there's his home prior to demolition. um, go to the next one, please, i think that's another view of it. fortunately, he had snapped these pictures right before, shortly before the demolition, other side we wouldn't have -- otherwise we wouldn't have known what it looked like. and the reaction of montgomery's city fathers to this, to mccall's efforts seemed very strange the him. his view was that he was trying to fight blight by building a new home in an underdeveloped area. and be he suspects that -- he suspects that, no proof here, wealthy developers are trying to get their hands on the property which is on a major thoroughfare, two acres. but as i said, he fought back, he hired an experienced local lawyer, he negotiated a court-enforced agreement which gave him 18 months to complete the home. only a month after the agreement

took effect in 2008, the city demolished the structure. and local bureaucrats were very much in a hurry, they did not give him notice when they sent in the bulldozers on the same day as the court order authorizing them. mccall then went back to the same judge who had allowed the demolition. she stated that she had been misled, she ordered the city to pay compensation. montgomery, the city of montgomery appealed, and the complaint, the ruling of the judge, they appealed it. and at this writing, mccall has not received a cent. and his view is that the city is just going to try the drag this out as long as it can until his money runs out. 2010 i received a phone call from karen jones, another property owner from montgomery. she related a case which was no less compelling. the city had just demolished the

day before her family home including furniture, family bible and old photographs. the authorities charged the property was a nuisance because the front porch was in disrepair. please go to the next slide. that shows the property. she had no photographs to share, but we got this from, a reporter got this from google earth, interestly enough. interestingly enough. please go to the next one, please. all right. they said the property was a nuisance because the front porch was in disrepair. although the city had sent out notices before sending out the bulldozers, none of them went to jones. instead they went to finishing ori jones, you have her death certificate, her grandmother, and matthew jones who is also deceased, deceased in the year 2000.

you have, also, the city still regards them, as you can see from the official documents, as fori jones as the official owner of the property even though this has been pointed out many times to them. now, the city, as i said, claims that karen jones is not the owner, although she pays the property taxes and which are not in arrears, has a warranty deed from 2002 indicating that she is an heir, and apparently all the other family members support her decision. despite asserting that jones is not the owner, the city is, you know, well, let's go on. in may of this year, the city tried to sell the property at auction still naming the deceased, fori jones, as the owner. and, again, in the official online -- >> can you wrap up, please? >> okay. i'm going to end there, but why don't we show this very short

youtube. i'm sorry i went over, but i'd be happy to answer any further questions. hope this works. okay. >> headlines across the state, people are accusing the city of montgomery of taking their property without compensation. using the city's -- [inaudible] montgomery -- >> raise the volume? is it possible to raise the volume? >> i was born here in this house. >> built in 1920, the home of karen jones' grandmother is now a vacant lot, demolished by the city of montgomery, alabama. >> anything that's not up to their par, um, they'll just tear it down, not try to revitalize, not try to bring life back into a neighborhood, just kill it. >> city officials claim the house is in disrepair and used

local blight ordinances to take it down. they did the same to a house jimmy mccall was building despite state and federal court rulings in the home homeowner's favor. >> they have no regard for the rule of law, you know? they do what they want to do. >> montgomery has condemned dozens of homes under its blight ordinances, often billing the owners for the cost of demolition. the city then markets the properties to private developers. >> the actions that we're taking, i think, are speaking volumes about cleaning up our city and having a safe neighborhood so that we can raise our family and enjoy the fruits of our labor. >> much of the demolition is taking place along possibility come ri's historic civil rights trail to make it for appealing to residents and visitor. ironically, these efforts violate civil rights. >> people are losing their property, the poor and vulnerable and minorities really within the shadow of this apartment complex where rosa parks lived. >> the chair of the alabama

state advisory committee of the united states commission on civil rights. >> the commission calls this eminent domain through the back door. all right? it's taking property, i think illegally, without due process. >> five years ago alabama passed legislation to prevent local governments from using eminent domain for private development, but the law makes exceptions for the seizure of blighted properties, and in the case of the latter, property owners have no guarantee of compensation. jonathan serrie, fox news. >> thank you. so we will now begin for the next approximately 50 minutes or so questions from the commissioners. do -- commissioner -- [inaudible] followed by commissioner jack key. i'm sorry. >> one second. i thought this was an excellent panel, and i wanted to recognize margaret butler. >> thank you. appreciate that, thank you very much. [applause] >> thank you to all the

witnesses. it was very informative and, again, i echo the fact that the chair, i'm sorry, the staff has put together a very good panel. um, one of the reasons why we had proposed this at least when i had suggested it was not the concern with respect to kilo, but this probably predated kilo and had been a concern of a number of people crossing the ideological spectrum; conservatives, libertarians and liberals. setting that aside for the moment, professor somin, you indicated that the determination of what constitutes a public use is often or exclusively left in many cases to state and local governments. does that signal a tension between first amendment concerns and fifth amendment concerns? if it does, does primacy, should

primacy be afforded to individual property right concerns over tenth amendment concerns? >> i don't believe there's any tension here at all because the tenth amendment simply says that powers that are not delegated by the constitution to the federal government are retained by the states and the people. however, any specific individual constitutional rights that are protected by the constitution including those protected by the i have -- fifth amendment, they clearly are within the power of the federal courts to enforce, and no one has ever suggested to my knowledge that the tenth amendment somehow prevents that. >> and when did we get to a point of the notion of what constitute public use -- [inaudible] was it in the berman case, or was that in the hawaii housing authority? where did that happen? >> even as far back as the 19th

century, some people made that argument and it was held under state constitutions, but the federal supreme court did not adopt that as an interpretation of the public use clause of the fifth amendment in berman v. parker in 1954. there were cases in the early 20th century and late 19th century which were also fairly deferential to eminent domain, but if you look at those case as i did in great detail in the one of my articles, none of those cases actually addressed the public use clause of the fifth amendment. rather, those cases were heard during a period when the supreme court had not yet taped into view the -- [inaudible] so, therefore, the only way to challenge a state take -- taking in a federal court was the. 14th amendment. and under that clause the supreme court applied a fairly deferential approach although not as deferential as later in

berman and kilo under the public use clause. however, in the rare instances during that period when the federal government undertook a condemnation that was challenged in federal court, the supreme court actually made clear in the 1896 gettysburg case that a higher level of scrutiny should apply when the taking and transfer of property to a private individual. unfortunately, there is some misunderstanding over this fostered in part by the supreme court in kilo where they claim there was 100 years of precedent backing their position. there was, indeed, precedent beginning in berman, but every one of the cases they cited before then was, in fact, a case that had nothing to do with the public use clause of the fifth amendment but was in reality a so-called substantive due process case under the 14th amendment. >> thank you. >> [inaudible] >> thank you very much, will chair. as a preliminary comment, i just

want to say that i had concern about the title of this briefing from the very beginning because it seemed conclusory in its title saying that there were civil rights implications of eminent domain abuse as if that, indeed, a matter of fact. and i think that was, unfortunately, mirror inside a comment that the administrator just stated on the video where he said that the commission calls this eminent domain abuse which we have not yet done. we have not yet said that, this briefing does not state that, this is a very different kind of creature. >> [inaudible] >> i understand, and it's something that we are very sensitive to here. >> although our local committee unanimously -- >> yeah. the committee, but you said -- >> you're right. >> -- the commission which was a step beyond. and that's why i was concerned about this title. i'm also concerned about how, whether this panel is truly balanced or not which i've stated in years past. but beside that, that's beside the point.

i want to talk about i was a local government official. i've, i was involved in the use of eminent domain, and i though that abuses have occurred in the past. abuses in the early '60s or the '50s. there was a thriving african-american neighborhood in san francisco, and there was a lot of relocation and uprooting through there. i also know that there's a lot of good that has been done from what we have done as well. in fact, when you see parts of san francisco now that have been through a redevelopment process, it's a wonder what has occurred in terms of the jobs and the economic growth that has occurred. i am not one who believes throwing the baby out with the bath water which is, seems to be part of what i've been hearing here today. because if there are issues that need to be addressed, they can be addressed.

but i'm not as unarguably convinced that the whole mention of eminent domain is by it an evil. and i just want to ask a question to mr. byrne and also mr. shelton. i think that part of, part of the sort of parade of horribles that have occurred in the past is precisely because they occurred in the past during a very different time before the civil rights act of '64, before the voting rights act, before, actually more importantly, redistricting one person and one vote cases that helped create seats for minorities have political power at the table. i just want would like your comment on whether or not those changes in the last 10, 20, 30 years are important developments in protection against the potential for uprooting,

relocation of minority or disempowered communities. >> well, it's my view that it is. one can't say that in every community that minorities have the kind of political power that they have in san francisco. but i'm sure you know from your experience in local government there that elected officials in a city would, are -- understand the difficulties of taking anybody's home and particularly doing so in a way that has an ethnic or racial tilt. it creates a kind of a political, political firestorm that is a major deterrent. one of the things about urban renewal was that the structure of urban renewal was such that mayors could bypass the local political processes by working with federal agencies. money would flow directly to

specialized local government entities dominated by the mayor and pursue projects over which the normal sort of citizen processes -- as imperfect as they were -- had really no effect. this has been wonderfully illustrate inside a book by douglas ray on the history of new haven, connecticut, which is cited in my article. so, you know, one can't say that there's never abuse of eminent domain in contemporary cities, but i think that the realities of the political process in which there is not a federal pipeline like that, in which the political processes of nearly every american city have been substantially democratized in terms of race and ethnic participation, and in which the money to be able to accomplish these things, a lot of it has to come through local sources. um, the kilo case itself is a

reasonable example of that where the use of eminent domain there was pursuant to a fixed state program that was approved by the new london city council after extensive political discussion. and justice stevens in his opinion pointed at the fact there had been an elaborate political process in place to the determine that new london was blighted, that this project was an appropriate response or appropriate attempt to remedy that problem. so can we do more to make participation better? yes, and i appreciated mr. shelton's commentses in that regard. but we've come a long way. >> i would agree. um, there are too many challenges and problems with those who don't have political power, economic power, so forth when the issues of eminent domain come about. quite frankly, we are disproportionately poor. the property values are disproportionately low, and it becomes a bargain for those who

want to buy in lots in one place and do some major project whether it's a local government project or a private project for that matter. we've got a lot of concerns with people that feel they have not had an opportunity to fully participate in making the decision, and that's why we make recommendations to address the problem. but also i think what you're getting at, commissioner, that we also strongly agree with is that there are a number of examples of eminent domain projects that prove to be very, very helpful. you are sensitive to the issues of the poor that live this those communities, there are examples in brooklyn and even manhattan where major construction projects actually made sure they honed in on those who were poor, created rent control scenarios for those who were able to come in and get first priority coming back in at the same rate. that is not done everywhere, and we'd love to see more examples that should be utilized across the country, but the safeguards are necessary because there are those officials who will exploit the opportunity. >> i just want to make a comment, and then that'll be it. i was going to agree with you

because one of the things when we were doing this new project called mission bay in san francisco, one of the associations i was engaged in was setting aside a good proportion of homes not just for low income, permanent home ownership as well as low income permanent rentals. so you actually see on some of the sides of these buildings homes in the low, well, for san francisco whatever it is which is still way beyond what any normal person would do, but it's still very, an affordable level that we deliberately chose to insure that we would have a diversified, mixed community and allow people the chance to come back. and this is pretty much a brand new neighborhood where there's no displacement other than bricks, mortar and a lot of toxic stuff. >> absolutely. and, again, the problem is those are still too few and far between. we'd love to see more of that happen. what we're seeing too often is when major projects like these occur, we see our folks find themselves in situations they cannot afford to come back into

the communities they left. indeed, we also find one of the topics not discussed is when you talk about people of low and moderate income, they develop other forms of capital among themselves whether it's one mother baby sitting for another mother while they go to the grocery store, you bring me back a gallon of milk. that as is not talked about, and we have to talk about those as well. >> professor, just briefly go ahead. >> let me briefly say the issue of lack of balance, major todd strange, officials in montgomery were invited to come here today, and they did not come here. they have repeatedly taken that position and, again, we have the death certificate here, somebody that they still identify as the owner of a property. if that isn't eminent domain abuse or abuse of property rights, i don't know what it is. so my recommendation is that the commission bring in the mayor, ask him to come, ask karen jones to come, ask these other

property owners to come in, and at the very least we want to avoid these kinds of abuses. and it's not the only example of this kind of abuse that has occurred. >> the chair recognizes vice chair dunstrom. >> thank you very much and thank you to all -- [inaudible] i'm going to lose my voice. but, anyway, all members of the panel. this has been an issue i've long been indirectly involved in since i'm -- oh, i'm sorry. my voice wasn't picked up. i was just thanking the panelists. and going on to say this is an issue that i've indirectly been long involved with because i'm on the board and have been for ten years, the board of the institute for justice which, of course, put ql and eminent domain on the national map as it were even though it lost that case. one could argue it won in the court of public opinion, though,

that is not what the institute for justice regards as a victory. i have a question for professor somin and really is asking him to comment on something that professor byrne said. professor byrne has described these decisions as, um, local democracy at bork. at work. reflecting the political judgment of the local communities and, um, and, of course, um, the local democratic processes are something that we all have some republican for. respect for. but i wonder, mr. chairman, if you would be willing to talk a

little bit about that issue, and you might want and you can take any example you want, but i've got in mind new london. i don't think that's really an accurate descriptionment -- description of the new london decision to go after homes that were not blighted, and nts were white, low or middle class. i'm not sure, before or after -- professor byrne, why you'd say that. the fact that homes like those in new london were white and middle class explains the political hysteria, and i'm very biased on this whole issue. i wish there were more political hysteria, but in any case, professor somin, i wonder if you would speak to the issue of the kind of democratic quality of

these processes. >> sure. certainly. so just a brief comment on the issue of blight. you are, of course, correct, no one claimed including the city government that these homes in new london before blighted. in fact, that's the whole reason why the supreme court took the case in the first place, because it was a case of a pure economic development taken where there was no allegation of blight contrary to what i think professor byrne may have inadd inadvertently suggests a few moments ago. on the broader issue of democracy, at some level, yes, almost anything a local government does can be characterized as the actions of local democracy. but, of course, that doesn't resolve the issue of whether there should be constitutional rights to constrain that if local government engaged in censorship or unreasonable searches and seizures, all of those things can be seen as exercise of local democracy as well and sometimes have the support of the majority of the population, but that doesn't

mean they don't violate the constitution and doesn't mean they aren't of concern. if you look more closely at how these sorts of takings work both in new london and elsewhere, it's actually often very difficult for voters and ordinary people to exercise real influence over what's going on for two reasons. one is many of these projects are very complex and difficult for nonexperts to assess, and often it's not evident for many years after the fact whether the economic development that suppose we justify the taking is actually produced. for that reason because of the difficulty of acquiring knowledge about these matters, often ordinary voters have little or no real influence over what's going on. often they don't even know what is going on. in addition, obviously, both in new london and in other places powerful interest groups are heavily involved in the process, politically connected developers and others.

in the new london case, a key role was played by the pfizer corporation which had lobbied for the taking of the one of the city's own experts in the case testified that pfizer was the, quote, 10,000-pound gorilla behind the taking. the new london development corporation, the quasi-governmental agency that organized the condemnation at the time the chair of the agency, her spouse was actually an important pfizer executive. now, having studiesed the case -- studies the case, it is not my view she undertook the condemnation just because she thought it would benefit pfizer. i think she genuinely believed it was in the public interest, but that's sometimes influenced by, you know, these sorts of connections. if you work for general motors, you tend to believe that's what good for general motors is good for america, and if you have a close connection to pfizer, you might believe the same about them. so at some level, yes, this is

an act of local democracy just as is anything that is done by local government. at the same time, this is an area where the democratic process often work quite poor and is often heavily influenced by interest groups. the one last point i'll make about this is i feel the panel is certainly a sign of great progress that african-americans have much more political power than they used to in the past in the urban areas, but that does not prevent, in many cases, the kind of abuse because of the people usually targeted by this sort of thing are, in fact, the urban and minority poor and lot of studies as well as common sense suggests that those groups have only very limited political influence, and urban politician like other politicians if they want to stay in power, they need to favor the interests of those with political leverage over those who do not. >> [inaudible] >> yes, thank you. so i didn't mean to say that

there was, that there was a blight finding in the kilo case. if i did, i misspoke. in fact, i had an interesting conversation with a connecticut state official who said to me that they proceeded under a different provision of the connecticut state law involving eminent domain which allowed there to be eminent domain when there was a finding of economic stress in a city and that could be shown that the project would address the economic distress of the city. connecticut used that process because they thought it was more transparent. professor somin before correctly, i think, said that the blight determinations that exist are often quite elastic, and the term "blight" is a kind of a stand-in for a need for economic development, and it's a troubling term. connecticut was trying to avoid that and making it more transparent. now, um, the history of the taking in the new london is very complicated and interesting.

but it's fair to say that the dissenters in the connecticut supreme court who voted to find that the use of 'em innocent domain -- eminent domain was against state law specifically found that the project was not done for the benefit of pfizer. it was done because pfizer had already located a test facility in new london. at the same time that the navy had -- or the coast guard had abandoned a military site. and the hope was that by redeveloping this part of town, they could attract other corporate development. um, there's no, there's absolutely no proof that there was anything untoward done on the basis of the decisions, and and as i say, it wasn't just done by the new london development corporation. it was specifically approved by the new london, by the new london city council.

now, look, nobody says that politics at the local level as at the federal level is without the influence of powerful entities what's needed, of course, is more transparency and more participation. and i strongly back that. but i stand by my, by my view that those are the proper remedies and not taking away an entire power from local governments to engage in economic redevelopment. >> i'm going to ask a question, then -- >> whatever order. >> that's fine. and commissioner harriet, commissioner kline. last week the pew research center issued a report that shows that the net worth of minorities, especially latinos and african-americans, has plummeted particularly due to the current economic conditions that we find such that latinos and african-americans' net worth now is 22 time less than white

americans. and i think there's a civil rights issue embedded there, but that's not what i'm going to ask you about. most of the wealth that minorities have accumulated in the past has been based op our homes. -- on our homes. however, i think when you look at minority communities and immigrant communities, one of the ways to find success has been through entrepreneurial efforts, and you and your comments, professor byrne, mentioned the distinct between compensation for homes and compensation for businesses. do you make a distinction between a business that may be a family-owned business or family-run business versus something that is owned by a corporate entity, and could you speak to that? >> sure. i don't have any problem with the idea that it would be a good idea to provide growing concern value as part of compensation, particularly for small businesses. what i was trying to draw attention to was that the proposal to prevent or to prohibit abusive eminent domain for economic development would

also prevent use of eminent domain on vacant lots held by investors in which there is no going concern value, but merely an attempt to try to speculate. so it -- so i agree with you, and i think that that is, i think that the remedies that look to increase compensation which shifts the calculus involved in the use of 'em innocent domain is a very fruitful avenue for further study. >> thank you. commissioner grass yang know? >> >> thank you, all, but i kind of particularly thank professor byrne because it helps me understand those people who like you who say there isn't a problem, that this is a solution in search of a problem. and i'd like to mention two, um, matters that seem, you seemed to raise that bother me and get your reaction as well as professor somin. the first is that if some of the

people involved in the coalition concerned about eminent domain are libertarians and be they happen to have a concern about the scope of government power, you didn't imply that they can't really be motivated by the plight of minority students, but you seem to say, well, that could, that that isn't, that that isn't. it bothers many he to -- me to suggest that just because one might be libertarian one isn't powerfully moved by the special plight of poor and particularly minority. it certainly isn't the case that those who were concerned about voting rights generally couldn't have been powerfully moved, the north by some of the examples that this commission showed the plight of blacks in the deep south in the '50s and the '60s. so that's one concern i have.

um, the second is the notion that seemed to animate part of the written submission and oral that as long as government has the right motives, then government will usually help minorities more. and i'm glad we're beyond the stage where, um, you know, a lot of eminent domain may be motivated by racism. but the history of urban renewal is littered with so many devastating mistakes, um, the hud probably had the best motives to group people in these huge, horrible housings. you in your testimony seem to suggest that mixed use is a great thing, and government is best to decide. i became involved in the issue about 4 years -- 24 years ago in a zoning fight in houston, became acquainted with the now-deceased but beloved colleague of commissioner

harriet's on the university of san diego, usd, i should say, bernie segin who did a study. back then the city of houston wanted to end mixed uses because to them in their covenant neighborhoods, mixed uses that the poor had -- and i was in one of the, you know, more well-off neighborhoods -- were ugly. but his pathbreaking book and many of the other fallout studies showed that, in fact, what was unappealing to government at the time, um, really decreased rents for minorities compared to dallas and other cities. so i suppose my question to both you and professor somin is whether we should be so trusting of government even when they're supposedly well meaning? >> well, thank you for your question. first off, um, thank you for,

um, the comment that -- and i totally agree that libertarians can be motivated quite sincerely by concern about the plight of the least among us or racial discrimination as part of the response that they make. and i hope -- but let's -- the, that was not what kilo was about. kilo was not about racial minorities. and the focus of the institute for justice has not been, has been on property owners' court, on eliminating eminent domain for economic development entirely. and so it seems to me, and the way in which the issue was framed to me for this hearing today suggested that the main concern of the civil rights commission was the undue impact of eminent domain on minorities, and that's what my remarks were

addressed to. but the solution that's being suggested both by professor somin and, i suppose, by yourself is to eliminate eminent domain for economic development period. and that does not address the harms that come to minors that come from highways or public housing for that matter, and it takes away one of the tools that have been, that has been used to try to maintain the economic competitiveness of cities with greenfield -- [inaudible] so i do have concern as to what the focus of this discussion is about, and i don't mean to impugn anybody's motives or, or -- at all. and and i'm sorry if it seems as if i did. now, you're making then, commissioner, a very broad argument about the, whether government has a role in land use regulation at all.

and i understand that there are people, and bernard segin is certainly one, who have argued over the years that that power is, um, is unhelpful. the problems with eminent -- so, and mistakes have been made. i mean, urban renewal has a very mixed legacy, and, you know, the definitive book has not been written on that yet. but, plainly, mistakes were made, and mistakes are being made today in government policy involving urban development. however, urban, the understanding of urban planning has come a long way since the 1950s. we have a much less grandiose idea, we understand the value of mixed development, and we understand the limited role that government can play as a catalyst in, um, helping particularly redevelopment of areas that need it.

t a very large -- it's a very large question to discuss whether government has a role, what the role of government properly should be in land use planning regulation, goes well beyond the issue of eminent domain. but it is certainly the case that we can point to uses of eminent domain in the last decade that have been, in fact, very helpful. the government can assemble plots of land in a way that private developers cannot. they can overcome holdouts, they can insist on, they can insist on a planning process that involves the community. and i think that's valuable. and the, the larger issues perhaps save for another day. >> professor somin, are you now or have you ever been a libertarian? [laughter] >> i've been a libertarian since i was 15 years old, and i even described how i first became libertarian. perhaps more relevant to your

specific question, i think there is no contradiction between advocating for property rights for the poor while also believing that the same property rights should apply to the wealthy and others just as there is -- [inaudible] with our view that these protections should apply to powerful media entities like "the new york times" and not just unpopular speakers. so, similarly, i think property rights apply the all. that said, as discussed in my testimony, it is the case that the poor and politically weak with respect to speech are all the more vulnerable. and that does get to the question of the role of government. one of the reasons why i'm libertarian in the first place and others are as well is that problems with government are not directly the result of particular planning processes or particular individuals who might make mistakes, they're also systematic, and government does have a tendency to favor the politically powerful over the

politically weak, particularly in areas like eminent domain where the issue is complex, and it's difficult for the general public to scrutinize what is going on. you don't have to be alibertarian to recognize this particular problem, but i think the libertarians and their contribution to this debate is to see its systematic nature. now, with regards to the question of the broader role of government, obviously, like professor byrne, i don't think i can fully address that question in this hearing. however, i would note that i think both 1950s urban planning and modern urban planning tends to oversaying what the -- overstate what the appropriate role of government here is. it's true there are holdout problems, but as i discussed in my testimony, private developers have good way of overcoming them, one of them being secret assembly. and those have is the advantage -- have the advantage that they don't victimize the poor and the pretty create weak nearly as -- politically weak

nearly as much, and they require the developer to pay for the project with their own money, right? >> when the developers pay with their own money, they have more incentive to actually do a project that will promote more economic growth than it destroys whereas when they can do so with heavy public subsidies to transfer other people's property to them, you often get very bad results. not in every single case, but i think in the majority of the time i give a couple of examples in my written testimony. i just mentioned the kilo case which has already been discussed a lot. to date some $80 million in public funds has been spent there, and so far years after the taking nothing has been built. the only beneficiaries of the taking so far other than the, you know, other than, you know, officials and lawyers involved are some feral cats that are currently living on site. .. the

>> than from ones that transfer lands from private parties because as i indicated the way private developers get arnholdout problems is by operating in secret and not letting people know this is a big assembly project that's going on with a public project where public funds are being spent, we do want public scrutiny and even if we didn't want it we'd probably get it anyway because government tends to leak if they can't keep

military secrets they probably can't keep development projects secrets either even if we wanted them to do so. >> professor, i'm glad you're answering the political philosophy because it would be highly ironic if you answered your system. [laughter] >> the chair recognizes commissioner harriet. >> thank you, mr. chairman. i want to say a word on behalf of them of $80 million but at least i'm happy for the ferreal cats. professor coleman you had mentioned there are more effective methods of dealing with the urban blight. can you elaborate on that a little bit. >> sure. i think urban blight is a genuine problem which i mean blight which really are blighted in the term where dilapidatedtation, threats to public health and the like. i think the best and most effective long-term method is dealing with this is having

long-term growth and property rights are actually an important part of that. most scholars in economics the problems going on in underdeveloped world is underdeveloped property rights and there's a series of books on this. i think in a number of urban development scholars also think we have a similar problem albeit in a less severe form some in fact poorer and less developed areas of our own country. in addition, while long-term growth is the best solution, there are other more targeted measures that can be taken, for instance, public health codes, the situation where maybe there are infectious diseases breeding in a particular property owner's area. and also in some cases one can use nuisance abatement and private losses. and finally we should promote legislation that's already been done in many states that should have more private plan communities so people can use

their own money and their own voluntary cooperation to create a better living space for themselves. today over 50 million americans already live in private planned communities of various types. and more can be done to make that option available to even more people and i think actually that's the kind of participation which is often more effective in promoting people's interests than the ordinary political process is. so i don't think there's an absolutely perfect solution to blight. however, there's a great deal that can be done without resorting to eminent domain and especially since these other approaches -- they have the advantage that they don't forcibly displace people from their homes or away from their businesses. taking the target small businesses often inflict as much harm as target homes but the public sympathy in those cases tend to be less. >> we have less than 10 minutes left for questions.

i have the commissioner who will be next. and prior to doing that i would ask if the commissioner had an opportunity -- she had an opportunity to do so. and that may be our time. so commissioner? >> thank you, mr. chairman. thanks to the panel. professor, i read your testimony and you were shocked they actually had eminent domain in downtown las vegas as well as time's square. were you ever in time's square in the early '80s? >> yes, actually, i was. >> do you want to admit that? >> i should wait and let you finish your question. [laughter] >> as young looking as you do. i too will be a libertarian. [laughter] >> but i was, and i think that their redevelopment plan has been successful.

would you not agree? >> to some extent, however what i was referring to took place in the early 1980s and it specifically with a taking the transfer of property that by normal standards was not in any way blighted to the "new york times" for purpose of building a new headquarters. >> you were referring to the general condition of times square in the early 80s. >> i was referring to times squares at the time this case occurred which was in 2001. >> right. and then the taking in downtown las vegas. have you ever been around that property? >> yes. >> and that taking was really a problem of notice, was it not? >> no. >> not without having an order to enter? >> are you referring to the -- the fundamental issue there was, in fact, whether the area was blighted. and the owners of the land said it was not and it went all the way to the state supreme court

and they ruled it was blighted on the grounds of nevada the definition of blight at the time was any area that was underdeveloped in some way, or which essentially was any area which does not have as much development as produced by alternative use. so there may have been other procedural issues in the case but the aspect that i was referring to, the one addressed by the nevada supreme court was specifically the question as to whether the area was blighted or not and the nevada supreme court ruled that it was on the basis of this very broad standard. >> and then your last remark in your comments was more work was needed to ensure a constitutional property rights. has any of these types of cases shown a violation of civil rights and property rights like kelo and the hawaiian housing thought which stand these court tests, the constitutionality. >> it was a close 5-4 decision.

i believe the majority in that case got it wrong as many of the cases do. there's some lower court decisions which have struck down takings on the basis that the official rationale was pretextual. and there also have been a number of state supreme court decisions which have invalidate those takings under state constitutions but and part of my testimony was precisely the federal court and some state courts as well have not done enough to approach that piece to the fact that most of these cases are run by the government at least in federal court. i view not as a positive sign that nothing bad is going on but rather as a negative sign that, unfortunately, the courts have not been doing their job in this area as well as they should. >> the chair recognizes commissioner yonke and commissioner achtenberg will have the last question. >> i want to say one last word to the professor to begin with. what you've been describing in your testimony today to me is

very powerful. and if it's indeed the case that they're using this different method of demolition to deal with homes primarily run by african-americans in montgomery county in montgomery, it is something that i wish we could go down there for because then we could use our subpoena power to force the officials to come forward with those records. this is a much broader hearing than that. in terms of what you're talking about, that could be a potential abuse of a police power that i think could have -- we could have a very significant interest in. i just want to address really quickly the alternatives. one of the things you talked about was secret assembly or in other words, we'll call the developer's shell game and they run around and buy little puzzles there and hold in a conglomerate together. i want to get all your options as quickly as possible. to me having watched that and seen that happen in various cities across the country,

including my own, the one thing that comes up is the fact that in many ways, one, i don't necessarily think that the developers are paying the highest and best price for some of those properties. they're paying in more than the government would. and number 2, in doing it in this sort of shell game frequently using nominees shell corporations, other kinds of things to do so, it actually becomes almost undemocratic so that question that mr. shelton would want raised, where are these people going? what are we doing with them? what is their right of return? what actually is going to happen here and whether that is a good and efficient use of property? i don't think those questions ever get answered in the secret assembly type thing until the very end when they may have to go to the planning commission to get it done. by that time, you know, when you have a -- your abilities may or may not be limited at that time in terms of your ability to deal with the issues that have been

raised by mr. shelton, and by mr. burton and yourself, too, in terms of on the impact of minorities. i just wanted you to address that and whether there are undemocratic aspects of that, that might actually militate against some of the comments you were talking about in terms of the perceived ills you see of eminent domain on racial minorities. >> thank you for that question. it's an interesting point. i think the important thing about the secret assembly is that when secret assembly or any kind of voluntary assembly are going on, people don't have to sell unless they agree to the selling price that is offered to them. so as a general rule, if people will not sell unless they feel they are better off with the money than they would be with the property. and that's a fundamental difference from eminent domain. now, whether they always get paid the highest and best price, you know, that may vary depending on who's an effective negotiator or what nnot but

they're getting paid a better price than keeping the property. the most important property rights is the ability to say no when people come and say i want your land or whatever it is that you own. you might say it's undemocratic in the sense that, obviously, until the project is later announced, it's secret but i think part of the point of my argument is that a better way for people to participate is to be able to make their own decisions about the disposition of their property and to be able to say yes or no to the offers that are brought to them rather than having a voice in the political process whereas an individual particularly, a poor one, your chance of influencing the outcome is small. by contrast, if you can say yes or no to offers that are brought to you, then you have a much higher chance of actually having a say in your on own fate. so if you believe the money being offered is not enough and

you'll end up living somewhere else or be worse off, then you can just say no. i think that's a good thing from a fairness perspective. it's also by the way a good thing from the perspective of maximizing economic efficiency and economic development. if, in fact, the current owners of property value it more than the developer does, then even if all you care about economic efficiency if you're like -- a libertarian of stereotype only cares about economic growth or whatever, then you still would want the secret assembly rather than eminent domain because you would want those projects that are not worth more than the existing uses that they would displace. >> the chair recognizes commissioner achtenberg for the last question. >> i want to direct this question to professor burn if i might. my concern in reading the material has been that the data,

at least as far as i can tell, is questionable in terms of the statistics that have -- that are available to us about what has happened since 1980 or 1990 or in the most recent decade past in terms of the allegations that it is clearly a disparate impact that's being felt as a result of eminent domain on minorities and other disempowered communities. i'm wondering, am i missing something or is the data as scanty as our current records makes it appear? >> i think -- i think -- i think there's a big problem with a lack of empirical study of the

employment of eminent domain. certainly, as you say in the last two decades or so, done to rigorous social science standards. we really don't know very much about the incidents and who's affected by it. and so i think that would be an enormous benefit. and i think something that's agreed across the political spectrum that a better understanding of what actually occurs would be helpful. the study referred to in terms of the victims and whatnot that's in there, really doesn't look at who's affected. it just looks at the census tracks in which eminent domain is used and that just doesn't tell you very much. and we could use -- we could all understand this better. >> thank you. please, everyone, join me in thanking or panelists.

[applause] >> i think we had a very thoughtful and thought provoking discussion this morning. i just want everyone to know who's listening here today that we're going to have the record remain open until september 10th for any public comments. those public comments can be mailed either to our office here at 624 ninth northwest, washington, d.c., 20425 or emailed to publiccomment@usccr.gov. that's public comment one word at usccr.gov. thank you all and we're going to move immediately into our regular business meeting. so thank you, analysts. you may go about your business. feel free to stay and watch our business meeting which is open to the public. the first item on our business agenda is the approval of the agenda.

>> c-span's live coverage of the iowa state fair, a key early stop for republican presidential candidates continues this morning and starting in about 15 minutes, at 11:30, this morning, we'll have speeches by a number of gop hopefuls. you'll hear from herman cain, michele bachmann and debbie wasserman schultz is invite to speak. she speaks as the chair for the democratic national committee and by the way, if you missed any of today's coverages you can watch today's speeches on c-span or anytime online at c-span.org. live coverage begins on c-span in about 15 minutes. tomorrow we'll have more live from iowa for the republican straw poll in ames. we'll begin at noon eastern with a preview program on the history and the impact of the 32-year-old event. it will be followed by the poll and speeches from the candidates. and, again, that's live tomorrow on c-span. >> watch more video of the candidates. see what political reporters are saying and track the latest

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>> as a aspiring journalist, i'm already preparing myself for the very small salary that i'll be starting out with. >> to be a good journalist you've got to be disciplined enough to really put aside your bias and report the facts, the truth. >> the reason why people love fox news and like movies so much is because it's an experience, it's emotional, it's love and it's hate. >> from the washington journalism and media conference at george mason university aspiring high school journalists on ethics, the role of opinion and commentary and where they get their news and information in today's multimedia environment, sunday on c-span's q & a. >> every weekend, american history tv on c-span3 highlights the 150th anniversary of the civil war. this week the new york city draft riots of 1863. >> this was fodder for lincoln democratic opponents who refused the two things and said, look, you're going to go to war. you can't afford the $300. you're going to go to the battlefronts and die.

and a black -- an emancipated black man is going to take your job for less money and your family is going to starve while the rich stay home. >> the new york historical society holds a panel discussion examining how possible conscription of working class men led to three days of rioting and the lasting effects they had on the city. the civil war, every weekend on american history tv on c-span3. >> and now a panel discusses how new media like the internet and facebook are affecting court cases. also remarks from first amendment attorney floyd abrams who responds to the panel and talks about cameras in the courtroom and the role of bloggers as journalists. it's hosted by the core public officers and the reynolds national center for courts and media. it's just over two hours. >> again i'm dan holden center for the courts and media. i want to very briefly introduce jeff tobin and then i'm going to turn it over to him. chuck, as many of you is a

partner in the media practice of hound & knight but more significantly and personally to me, chuck was the lawyer for many gannett newspapers including the palm springs desert sun when i had the good luck to stumble upon a story about a guy who was ripping off golf course investors. and chuck gave me a four-hour counseling session. the fellow, jack franks, went to jail. and i didn't get libel thanks to chuck. chuck is a terrific lawyer and a very funny guy and he put together a terrific panel based on real facts. the night stalker if you google it is based on carlson geary, gary and the case of the stalking strangler in columbus, georgia. chuck. [inaudible] >> the question whether i helped

your career or otherwise. folks, it's a pleasure to be working with you today. welcome to theater in the rectangle. this is -- this is going to be a fun time for you and we hope for our panelists as well. we're going to kind of intergrate the material that you've been talking about in your sessions all day long and that is the fusing of the geometry and the courts and the justice system and the press and the lawyers who advocate before the court system. and to do that, we brought an expert -- a blue ribbon panel of experts but we're going to turn the triangle a little bit on its head. i don't think that's a metaphor. we're going to ask the panelists to step out of their comfort zones and they're all going to be playing various roles of people that they have observed in the process but have never actually played themselves and so to make the introduction, to start off our panel playing the role of prosecutor is barbara

wall. barbara is one of the best friends of any journalist and many of the rest of us could ever have. barbara is the senior -- is the vice president and senior associate general counselor of the gannett company in mclean, virginia, and that puts her at the apex of media law issues for all of gannett, several hundred newspapers, television stations and web channelling including -- channels that we're going to be talking about. she chaired the communications of law and she's the onboard directors of the reynolds center which is one of the sponsors of today's program. and we have eric lieberman. eric is playing the role of defense counsel today and eric is the general counsel of the "washington post," which, obviously, puts him -- since they're the largest stakeholder in these issues directly on the firing line of many of the media access issues that we're going to be talking about. he's been with the "post" since

1998 as a lawyer. prior to that he had a great career as a lawyer with williamson connelly and in his spare time he's also the secretary for the maryland institute of delaware press association and he's involved on a global level in these issues. and we have john judge bachiola who is on the district court here in washington, d.c.. he's one of the leading experts on electronic issues, particularly, electronic discovery and has been involved in many of the groundbreaking work that's been done in the court systems dealing with electronic discovery issues. he's also only one of two panelists here who has his own wiki. [laughter] >> we'll figure out who the other one is. next to the judge we're pleased to have the role of online journalist angelina plemmer.

she's the director of the maryland judiciary office of public information. she's leads a staff of nine people and her job is to assist judges in dealing with the public and public access issues. prior to that she was a journalist in virginia and was also very active as a public information officer for municipalities in that region. thanks for joining us, angela. this is the gentleman who has the other wiki on our panel. this is chief judge bryce lambert on the united states district court. he is the chief judge, chief administrator judge for the courts. he has been on the courts for over 25 years. he is known for both his wisdom and his independence. and he has presided over many issues and proceedings involving access to courts. and he's very active and proactive in these types of discussions and a real good sport. we're delighted to have you with us. thank you, judge. on the other side, he doesn't play a judge on tv but he will

play one here today. let me introduce you to judge gene. gene is the senior vice president at the first amendment center of the freedom forum. he resides in nashville and has an office here in washington, d.c.. the and it's one of the leading organizations that works with judiciary and government on open access issues and counselors journalists along the way. and gene himself has run panels just like this and programs like this in conjunction with the organized federal judiciary. and so gene, we look forward to your wisdom -- pearls of wisdom here. next to gene is brooke. brooke has a cool job, she's playing a public information officers, also a cool job. but in your private life, in her real life brooke is a full-time blogger. brooke runs a website the felony

calendars.com and is it singular plural. >> plural. >> i want to steer you to the right url. brooke has a law degree and has practiced both white collar and civil defense law and she found it real interesting spending time in court since there are a lot of human stories and legal stories and she's put them all together on a wonderful blog. my favorite is your weekly feature in which you recall the -- in an arbitrary and capricious way -- or the most arbitrary or caprecious moments of the court system in the past week so welcome, brook. next to brooke playing our national tv journalist is no stranger in the room is lucy. she's the executive director for the reporters committee for freedom of the mess. the rfpc is located in roslyn, virginia, it's the leading advocacy organization for reporters legal rights and she is active in all of these organizations including serving on the board as well as the reynolds national center for

courts and the media. and playing our juror today is my good friend rem ryder who's senior vice president of journalism interview. hjr which is located in college park, maryland, is the leading critique magazine of the news media industry. he's also active as a blogger on their website, har.org and rem has worked in just about every newsroom that hasn't thrown him out. [laughter] >> in the united states. and he collects people for his spare time. so thank you for joining us, rem. and i want to introduce everybody to our hypothetical for today. welcome to the case of the nylon night stalker. we're going to have our group examine several aspects of a celebrated case that is coming on the court's docket today. between 1992 and 2000, in the

region of washington, a series of seven gruesome killings took place. all of the victims were white women over 60 who lived alone. each were strangled with brown nylon stockings. and an african-american handi man named jerry carlton was arrested in march, 2007. carlton had worked in the building where some of the victims lived. >> the case against carlston is entirely circle. it's built on forensic evidence gathered from the scenes of the crimes and in the apartment. the search took place with carlton in consent in finger quotes after a 24-hour police interrogation. the length of time between the crime and carlton's arrest was the lack of eyewitness testimony and it has fueled intense public debate in the case against carlton. the judge today will hear

pretrial motions including several from the news media before jury selection commences. the panel of 12 jurors will be chosen including juror number 1 which is part of our panel today. the court is now in session. the court has before it a motion to permit the prosecutor and the defense counsel to use the internet during the questioning of potential jurors. let me turn to the defense counsel first. let me ask you, why would the internet help you? why do you want this motion granted? >> well, it's critical from my perspective that the defense counsel in the case because question that can be asked to the jurors are limited. and limited in time and the amount of questioning and if there was a survey passed out and in this case, there was a survey passed out given how high profile this case was, there's a limited set of questions and so

from my perspective, it's really important for me to be able to search the internet to see if i can find additional information to find the best jury for purposes of my client getting a fair trial in this case. and i would like to look and see whether any if the jurors have blogs or twitter pages where they might have made comments that might indicate a preconceived notion about the case. there's been a lot of publicity about the case. i'd like to know, for example, maybe one of the potential jurors wrote a review on yelp asking people to worry about having handimen in your home. so it's those sorts of things i won't be able to ask in the questioning, which is the surveying questions and i would like to do the internet search for that reason. >> as prosecutor, barbara, do you want that for the same reasons or do you only want it if he gets it? >> well, you know, for once i think i'll agree with the defense counsel.

i think it's very useful information. for one thing i don't want to have a mistrial. and in this situation, you know, i'm sure the defense counsel and the judge is well aware of the cases where a mistrial has been declared because information about potential jurors is disclosed or seated jurors is disclosed during the trial itself or perhaps afterwards. so my view is that the more information we get at this point in time, the better. and it would help in my selection of the jury ias well. >> let me ask the potential juror. how do you feel about them googling for jurors when you come to do your civic duty. >> it makes me really uncomfortable. it's one thing to be reading blogs and that kind of thing but there's all kinds of misinformation on the internet. i don't know what's out there, what people have put up about

me. and it seems it's wrong to have that being circulated in a law enforcement proceeding like this. it really makes me very queasy. >> well, let me ask judge gene, you got a motion before you. you've heard the arguments, your articulations of reasons. what do you think about bringing the internet for jury selection? >> recognizing the difficulty of impanelling jurors in contemporary society for a host of reasons and certainly being aware of the uncomfortable nature, nonetheless, i would find it's certainly permissible for both the defense and the prosecution to use the internet for information that would add to the process of voir dire, i would remind counsel that no third-party interrogation prior to voir dire would be permitted.

you can't have an investigator quiz the juror to follow up on something on the internet. if you find something on the internet that's important to raise as part of your voir dire, that would be permitted. it's another investigative tool. but i would not want an investigator to do a prescreening prior to the voir dire process. >> if his neighbor had chaos on the side of the house, would you let him talk to the neighbor? >> i think the proper place for the question of the material found on the web is in the courtroom at the time the voir dire. you have the surveys. you have a number of questions which i think is sufficient to determine bias. we're not trying to determine a perfect jury. we're trying to find and establish a jury which will not arrive on a preconceived conclusion which will be the objective during the trial and i think you can do that adequately

in voir dire. i see the internet as simply another tool in the aid of finding the process of questioning jurors at the time. i would be uncomfortable again with third-party interrogation of a jury outside of my courtroom. >> mr. lambert, as one of the leading print reporters in and courthouse stompers in the area, if they get access to information on google, would you want to be able to track what they're doing? would you want access to what they're looking at? >> i don't expect they would share that with me but i could google it myself, and i would. >> so you would -- >> if i had the names, of course, some courts are not going to give me the names. >> judge gene, are you going to keep the names? >> when we're talking about the jury pool? >> yeah. >> i think in most cases the jury pool is not a matter of public record until the jury's impanelled and even at that

point it's up to my discretion when those names will be disclosed. again, the information on the web is publicly available. i see no reason to constrain counsel on either -- on either side from using that information. but, again, i recognize -- and the point is to impanel a jury and to do so in open court. >> as, you know, the leading tv journalist in this market do you agree with your print compadre. do you think you had a right to the information that they're seeing on google? >> no. i don't think i have a right to look over the shoulders of the prosecution or the defense. but i certainly am going to sit in that courtroom. i'm going to ask for permission to put my laptop on my lap and depending on -- i still don't know right now whether or not we're going to be able to find out these jurors their number at

this stage or whether i would get their names if their names are called. if i hear a name, you bet i'm going to google it. >> let's take it a step further. because defendant's counsel having his named mentioned will get a little greedy and now he brought a motion for the court to order potential jurors to provide access to their facebook accounts so that he can look at their facebook accounts. why are you doing this? >> again, i think it's critical to my ability to defend my client in this case and to make sure we have a fair jury. before jury selection, i'd like be able to look at their facebook pages and see if they have any postings that i think might compromise their ability to judge this case on the evidence. there's been a lot of pretrial publicity about this case. they may have preconceived notions they've posted on their facebook page. this case involves potentially societal attitudes about race,

about the police, about class in terms of working class people in your home. i think it's very important that i be able to review their facebook postings before jury selection to see whether there's anything that calls into question their objectivity. >> do you oppose this motion? >> i will not oppose it. >> well, if she gets it, and she get it, access to the facebook pages, as an online journalist, would you ask the court to let you get it, too? >> absolutely. i want it all. >> you want it all. >> i want it all. >> what would you do with the information? >> well, certainly i could inform my online readers about the potential jury pool that exists and, you know, who these people are and where they come from. and would it be a jury pool representative of mr. carlton's peers. >> well, if she gets it and she gets it, and he get it i'm going

to presume you're going to want it. >> i'm going to want it. >> and media counsel, if the lawyers in the case get it and they're going to work with it and if it becomes part of proceeding, is the press entitled to the same access? >> i think so. i mean, even in related concepts, there's a growing body of authority that what you publish for all the world to see can't possibly be private. so if these people have posted this stuff on their wall and it's accessible, i don't understand who -- how that process can be interdicted in any practical way. so everybody should have it, yes. and there have been -- there's already been reported instances where people have said things on their facebook account or in their tweets which showed they had no business being on a jury 'cause they already made up their mind so it's a very valuable source of information for everybody. >> let me ask our resident

blogger in her real life to step into her real role as a blogger. i heard an argument from the attorney on behalf of the news media that was premised on a lack of privacy on posting something on someone's facebook wall. as someone who traffics a lot on internet issues is it validated private, is it public. if you only let certain friends access it? >> well, i try to be sensitive to the notion that everybody who's participating in a court proceeding has things about their lives that they wouldn't want to be draped in front of the public. and i think there's certain things on your facebook and germane to your service on jury and i think certain things that are not and your fights with your boyfriends or girlfriends and domestic issues and things like that, i would think that i wouldn't feature on a blog but certainly things that go to what you might -- your views about

the case and whether you've preformed a view, i definitely would. >> would you mind seeing -- [inaudible] >> absolutely. >> we have been instructed by the court. >> thank you, by the way, you all may be seated. [laughter] >> by the way, on this issue of facebook, my office has just received a letter from counsel for facebook. and they are quite concerned with the notion that the terms of service that were entered into at the time of these jurors -- the creation of their facebook account will be disregarded. and so i feel that it's important for me to bring this forward. they wrote to my office because they felt that i'd be sensitive to the need to enforce their terms of service. >> all of those terms of service will provide them cause and

concerns. >> according to this letter, i'm just a lowly prosecutor so i don't keep up with all this stuff but the terms of service apparently provide that if a scriber to facebook elects certain levels of privacy, that facebook will abide by those levels of privacy and so that's their concern. >> so there's something in their terms of service that uses the word "private" in connection with things that are on their page that only they can give access to people? >> exactly. they would have to be complicit or they would -- they would need to get some additional access, so they say. i don't know. i watch my kids play with their facebook accounts. there may be other ways to do it. i suspect they exclude me from their facebook accounts so, you know, it may be. but that there are alternative methods that the jurors themselves would be able to control. but as far as facebook being

willing to open up actions in violation of the terms of service, they are not. >> i certainly understand facebook's perspective. facebook has done a lot of amazing things for society, but respectfully, i don't believe that their terms of service are an enforceable contract. nobody really reads those terms of service. [laughter] >> what they say. and secondly if there was a term of service there, i think my client's sixth amendment interest in having a fair trial far outweigh any minimal intrusion on facebook's business from having these accounts accessible to defense counsel in a case of this attitude. and i disagree that would be any grounds for resisting and producing the other facebook postings. [inaudible] >> there's at least one case where a woman on the basis of being discriminated against that

she was subjected to severe emotional distress. counsel asked to see her facebook account and while she was emotionally distress she was on a cruise and that's exactly why. so i don't understand how the terms of service could bar a reasonable service for reasonable evidence just because there's an agreement between those two people. as counsel just said, when did his client waive that right. >> and the in terms of service on facebook -- >> well, i think a range of issues on those terms of service all the way up to the use of, i think, section 230 to protect the amendment of anonymous commentary on the web from being disclosed. but it's the court's obligation is to impanel a impartial jury. and i would assert no less authority than judge alex

ca-zinn can i of the fifth amendment. there's a piece about the fourth amendment and privacy in the last item in the column is rest in peace as he decides that in the modern world, privacy no longer exists. and eric schmitt of google again taking notice of this -- if i can paraphrase franchise item that i found on the court's own initiative, if you want to hide something -- [laughter] >> if you want to hide something in the first place, to do that is on a social media. that's where you share your brain and hide secrets. so this court would be inclined to grant the motion to jurors to disclose their facebook. i would consider it to be part of the identifying information of a juror to be disclosed and to the public and press at the time other identifying

information is disclosed rather than during the trial. >> what is your ruling? >> the ruling would be the motion would be -- we'll accept the motion to order potential jurors to provide access to facebook accounts to counsel with the admonition that this is for counsel's -- -- and entering an adjudicated. >> i would consider it to be part of the identifying information of a juror. and if we aren't disclosing names and addresses and other identifying information, at that point in the trial, i would lump it into that same information. to be disclosed at the earliest possible moment. but i would consider it another piece of identifying information. >> what if the judge ceded then that the press gets access to their facebook page.

>> i would expect how the press that -- >> well, because a reporter recognized one of the jurors being questioned in the box and approached his good friend's information officer and said i'm friends with that juror, that potential juror, and i'm not the only one in this courtroom. i just noticed the judge is friends with that juror, too. and so he puts this problem in your lap, this court public information officer. what do you do? >> boy! [laughter] >> while not being a public information officer, i'm going by gut here and i think what i'd have to do is, i think i'd have to inform the judge. >> you would go up to the bench

and have a conversation with the judge and say, i just heard that you're friends with that juror. >> well, it doesn't sound like a great conversation. [laughter] >> maybe -- you know, maybe i need to -- i think i need to alert the judge and maybe i don't need to alert him as to the specifics of who has said something, but maybe i need to alert him that there's an issue. [inaudible] >> i would guess, i think i would like to know. i actually think in the years we've been working with judges, that that's an issue that neither would have been handled with a bailiff or with the jury list. i know in state courts -- i served on a grand jury earlier this year. and i think the judge who impaneled the jury had the name

of the jurors beforehand and i don't know if they struck or not, frankly. i'm stepping out of my role here. but i would assume that would be something either -- maybe, you know, a judge might not recognize until they were in the room or whatever. but i think at least on the state level a lot of times they're able to see the jury list when the exceptions come back and, in fact, and selection it -- >> well, you know, cbs news got the same tip and did some investigating; found out the same thing. and i went to the court public information officer and said i want comment from the judge about this situation. and, you know, regardless of what the judge says, i am going to do a story tonight on the news. and the judge probably wants to know that. i would hate to blind side the

judge. he deserves to know. >> so you're going to run the story. >> probably not. right now i'm not planning to. you know, it's been my experience as a reporter that -- i cover a lot of stories in this town. my experience as a reporter that when you do that, the judges get really ticked off. [laughter] >> and if i ever want to get this judge to speak to me again or to have anyone in the courthouse speak to me again, i just don't think my inclination is to call the juror. >> media counsel, are there any circumstances under which you would counsel a reporter to call a juror or potential juror? >> i just don't think now. there's a fine line here about abinstruction of justice and tampering and so forth. i have to be a little more

familiar with the situation here. but i would be very remissed to say they do that. now, on the other side of the ledger, i am familiar with some ethical opinions about judges using facebook. and there's at least one ethics opinion indicating prior to the judge using facebook to communicate with a lawyer it was sent in that case they actually spoke about the case. this is not that situation. i as a lawyer was sensitive to the ethical constraints with what the person just said. i would be very circumspect and i would go to the judge or counsel the clients to go to the judge and not talk to the jury at this point. the judge has got problems. >> chief judge lambert, stepping into your role. where do you see the lines between judges and social

security media and the bench and the accidental circumstance that you live in a community where people might be called to jury duty or as witnesses or as lawyers before? >> i think many judges do not pay enough attention to the rights of jurors. and i think when we drag people down to service as jurors, we need to be concerned about their rights. and i do not agree with anyone not having rights to privacy. and i would be concerned even allowing a look at facebook by counsel in this case. i think jurors might feel they have a right to serve on a jury without having their lives investigated. and i would be very concerned about starting down this whole slippery slope and you starting down this series of questions. i think jurors do have rights and i would be more concerned about protecting that. you have to have some concern about protecting the defendant's rights but i don't think

defendants have ever had the right to investigate jurors or potential jurors. >> well, what possible solution to this whole morass of juror privacy and the public's right to know is to seal the courtroom during jury selection and you know what? our troublesome defense lawyer has just asked the judge to do exactly that and so justify yourself, counsel, why do you want to shut them out? >> i understand i have an uphill battle here. i understand the case law says voir dire is presumptively open but it doesn't mean that its absolute right to have an open voir dire and i think there's special circumstances in this particular case that justify closing the voir dire. and the reason is there are because a number of very sensitive issues at the heart of this case that are critical from my perspective to making sure that we get a fair and impartial

jury. i'm going to ask potential jurors questions about their attitudes on race, their attitudes about the police, whether they've ever been mistreated by the police. i'm going to ask them whether they've ever been a victim of a crime or not. i'm going to ask them whether they've ever thought that a person who worked in their home stole something or committed a crime while they were in their home so there are a lot of uncomfortable questions and my concern about the level of publicity in this case and potential jurors knowing that everything they say is going to be reported in the "washington post," for god's sakes. [laughter] >> that they're not going to be candid and honest and that's critical to my ability to try this case. and so, you know, as much as i understand the presumption, i think this is that special case where you do need to close the voir dire in order make sure we get honest answers. >> let me ask a juror here are you going to be more candid about sensitive issues about your views on race and police

brutality and police service. are you going to be more candid in a public environment than a closed environment? >> i think i would. there's a lot of things you don't necessarily want broadcast to all your neighbors. and you just don't want out there and in that case like this there's a lot of sensitive issues. yeah, i think i'd be much more candid and also feel much more comfortable in service under the circumstances. there's the possibility that facebook paging will be open which already has me upset because i like to pick my own friends. i don't necessarily want prosecutors and defense lawyers looking at everything i've said. so given all that's going on, i think -- i think having it in private is a great idea. >> but you're going to be under oath whether it's private or public so presumably you're going to observe your oath and tell the truth in both circumstances? >> i would certainly tell the

truth but i think you'd be a lot of more expansive is and much more forthcoming. not that you just lie or anything but i just -- i feel enforce, otherwise. and if you had the press in there i think it would make for a just better circumstance. >> let me ask an online journalist. i mean, this isn't a courtroom environment jury selection process in environments -- lawyers aren't even asked many of the questions. there's no banging on the table. there's no arguments before the judge. how boring. do you care? >> yes, i do care. my presence serves a very valuable purpose. i'm there to help inform the community about what is happening in the courts. to hold the courts accountable for due process, to hold the courts accountable for how they do business and i think it's part of the court's best

interest to have me there and show how the process works and how efficient it is. and, again, what people can expect from the court system in this kind of case. >> well, let me ask judge gene, you've got a racially charged -- a potentially racially charged circumstances in the case. you got people in the community who are angry and to bring somebody to justice on this horrible series of crimes. you have the aclu up in arms over the tactics that the police employed to get the search warrant. so there are all the elements for an extremely volatile situation. why not just seal the courtroom? >> well, i think that a couple of things you'd want to acknowledge at the outset. that for 30 -- roughly 30 years, there has been this affirmative position that it will be over unless there's sufficient reason to close it.

you're not starting with a should or shouldn't be. i think that unbalanced when there's extreme community interests or a controversial issue surrounding the trial, that transparency serves the best -- is the best means other than uninformed speculation as to what might be occurring at any given moment. you know, jurors -- witnesses during the trial will be asked difficult questions and to expose their views fully under oath. the obligation of a juror in my mind is no less when questioned. and i may hear about this in the judge's lunchroom later but it would be really imperative for the judge to spend sufficient time to talk with jurors, to educate jurors and then to participate in questioning.

to essentially tell jurors that despite the discomfort, that they need to fully and completely respond to questions from counsel in the process of selecting a jury and i think the best anecdote to a lot of the controversy that surrounds the judicial proceedings and turmoil in the community over things like tactics is the transparency of the system. so i would be inclined not to close the process. >> we can explore other alternatives like counseling the jurors. can i ask a real media lawyer over here. when it comes to alternatives and cloture, is that a viable argument to keep proceedings open? >> well, we always suggest various alternatives short of complete closure. i think they're not particularly effective. and i'll tell you the thought level i'm having in my prosecuting-attorney role is typical defense counsel larding

up the record with a bunch of motion that is he's going to pull out on appeal. so i'm cynical -- i'm cynical about this, but, you know, the motion that he's made makes him look good to the jurors so i'm not going to oppose it because i don't want the jurors to think i'm not on their side. but i'm glad that the media has good counsel that's argued these cases before. it's just typical of my colleague at the bar to make a motion like that. >> that was just a thought. i didn't say any of that. [laughter] >> i know -- >> we're going to leave this discussion for a quick moment to take you live to the floor of the senate where the chamber is gavelling in f a