True North

Ch-ch-ch-changes

2010-12-04T01:00:00.003-06:00

So, the decision has been made . . . and is irrevocable.

In a few short months I will be walking away from where I am now and will be walking toward and into a new life, in which very little is truly sure . . . save this . . . in all likelihood, I will not be working as an attorney of any sort, much less as a criminal defense attorney. Simultaneously, I will be making a physical move of approximately 1,000 miles.

This is nothing remarkable for a law school graduate. Former lawyers who find themselves utterly disillusioned with the profession are so common as to be cliché.

So much for any aspirations on my part toward being utterly unique.

Just saying

2010-11-04T21:10:00.000-05:00

A not very daring prediction

2010-11-01T19:57:00.003-05:00

For the record, within twenty years, China and India will be the First World nations, and the United States will occupy the position that the UK occupied during the late 1970's.

Admittedly, I am not going all that far out on a limb with that one.

It is just sometimes good to get this sort of thing on paper (as it were), if only so that one can point back to it in a decade or two, and say - with an appropriate amount of aplomb - "You know, I saw that coming."

It's official . . . again

2010-11-01T19:49:00.002-05:00

Alcohol is more damaging than heroin.

Not that anyone who has spent time studying drug policies in Western nations is all that surprised . . . but it is always nice to have a source like Lancet offering confirmation of what many of us have known for years: that a drug's legal status often has little relationship to its objectively measured capacity to cause damage.

Moment of Geek

2010-10-30T16:42:00.002-05:00

The Golden Joystick Awards were announced recently, and Mass Effect 2 received its just desserts, taking home RPG of the Year and Ultimate Game of the Year. I would add Game of the Decade (if such an award existed), but that is only because it has been a decade since I found a game with this much re-play potential.

On an only tangentially related note, Final Fantasy XIII won Soundtrack of the Year. Granted, the music was pretty, but I cannot get past the utter inherent wrongness of granting even the tiniest positive reinforcement to that franchise-killing abomination.

Because sometimes I have to get my sports geek on . . .

2010-04-22T21:50:00.004-05:00

And so it begins again, thankfully.

For me at least, the NFL draft has always been the "official" beginning of the football season, the moment when my attention (or a significant part of it) swings back to the world of sports and my radio dial shifts back to the local ESPN station, if only for the necessity of tracking developments with my beloved wearers of the sacred Green and Gold.

I know that this is an odd moment to pick as one's "opening day." Then again, one of the most vivid memories from my middle school years is of watching my Mom sit in front of the television with a notebook and pen, watching the draft, and taking ridiculously complete notes. Bless her.

Naturally, there have been years when the draft has disappointed. And years when the draft has thrilled.

This isn't really either, but I am quite pleased to see that the Packers have actually tried to do something to address the gaping hole that is the offensive line.

And, on a side note, it's rather pleasant to see that three of the top five picked overall in the draft are Sooners.

Just sayin'.

Yeah, Officer, I stole his television, but I didn't murder him . . .

2010-03-26T23:21:00.004-05:00

When people hear the phrase "wrongful conviction," the picture that springs to mind is usually something connected with Barry Scheck and the Innocence Project. This is, of course, understandable and only natural. Unfortunately it does not come close to telling the whole story.

A couple of years ago, a bare week or two after I moved from representing the State to representing defendants, my boss told me something that I have never forgotten and that has been one of the guiding principles of my practice.

"Most of the people we represent aren't innocent, Armagh," he told me during that first of many long conversations. "The overwhelming majority of them have done something illegal, but you'll find that most of them are either accused of more than they actually did or of worse than they actually did."

I didn't want to believe it. After all, I had worked for a time at a District Attorney's office. I had drafted criminal complaints, and in every case I had believed utterly that the crimes I was charging the person with were the crimes that he had committed. But prosecutors only get one side of the story, and they get that side filtered through the lens of law enforcement (more on that in a later post), so what an ADA sees is not necessarily the Truth™ (though defense attorneys don't have a monopoly on that commodity either). And my internal denials soon had to yield to the unstoppable force of experience.

It is not uncommon for someone to be convicted of Battery, all they are actually guilty of is Disorderly Conduct. It is not uncommon for someone to be convicted of Possession With Intent to Deliver when all they are actually guilty of is Possession. And, as I have recently learned, it is not uncommon for someone to be convicted of First Degree Intentional Homicide when all they are actually guilty of is Second Degree Intentional Homicide.

To many in the general public, this may not seem like a big deal. After all, the person is a criminal . . . a bad guy . . . so if she gets a bit more than is coming to her, well, really is that such a big tragedy? Surely there's something she got away with at some point and this is just balancing the scales, isn't it? The problem with this view is that it subverts everything that the criminal justice system is supposed to be about. One of the reasons that a robust adversarial system is so very important is that Truth (real Truth) is more likely to be found if it is subjected to challenges.

That's the whole point. Each side says his piece, and somewhere in the middle, the jury finds the Truth.

Unfortunately, that is not the way it shakes out a lot of the time.

Juries want to be convinced that the defendant is innocent. The real trick is getting them to understanding the difference between innocent and not guilty. That is the sign of a really good criminal defense attorney . . . being able to drive that distinction home.

No, I'm not there yet, but some day I hope to be.

Hey, I am more than willing to admit it when someone says it better than I ever could

2010-03-26T21:30:00.003-05:00

I've known Soldiergrrrl through various internet forums for about a decade now, and we've disagreed as often as we've agreed. Through all of the debates, I have learned one thing very well. Sometimes she expresses a thought far better than I ever could; I guess that's why she does public affairs work.

Reposted with permission (the original can be found here):

First and foremost- I don't CARE who started it. I'm not interested in hearing playground whines about "He did it first!" SHUT UP.

Now, are you listening? Because I'm only going to say this once.

You, yeah you...the one putting politician's family members in the newspapers, the one publishing the address of a politician (except it wasn't) and encouraging people to "drop by" to give a protest that "pesonal touch," the one advocating ANY type of violent action because you disagree with someone else's veiw point....STOP THAT SHIT. I'm not kidding. Don't look at me and say it was just "hypothetical," or that you didn't *really* mean it.

JUST STOP it. STOP encouraging your followers to commit acts of violence because you disagree with a political party. JUST STOP. In case you're wondering, that kind of stuff is what they do in crappy third-world countries. You know, those crappy third-world countries my family members have been to in order to try and get the locals to STOP THAT SHIT and to understand that really, threatening families and blowing shit up is NOT an okay way to get your point across. Seriously, I've been part of a group trying to convince people that really, blowing up opposing newspaper offices is NOT the way to shut them up. You think that shit's funny or effective or the right measures in "desperate" times? FUCK YOU. It's not. It's wrong, no matter what side of the political spectrum you fall on. STOP THAT SHIT. It's how terrorists get their way.

Yeah, I said it. Fuck you. I'll stand up and say that if you threaten elected officials or their families, or their homes withVIOLENCE, no matter why you do it, you've started down a dark and terrifying road that leads to the same whacked out bullshit in those crappy third-world countries we get to visit and terrorism. And terrorism in the name of your sacred cow is still terrorism.

STOP IT.

You don't like what someone's saying, especially an elected politician? Fine. Goody for you. You want them out of office? Great. Get your ass to work and make it happen. Legally, morally, ethically. Get stumping, tell me why your guy will do it better, will do it the way that will best serve this country, why your guy is BETTER than the guy in there now. Don't just tell me he's a big bad meanie poo poo head and he deserves to DIE. STOP THAT SHIT. Seriously, threatening their families? Did you miss that how the fucking Taliban keeps people in line? Are you fucking serious? You think you'reRIGHT when you pull that stunt??? STOP THAT SHIT.

I DON'T CARE if you're really mad about FITB lesislation or FITB party platform. I don't CARE. Threatening people with harm, calling them things like "a dead man," or implying that violence is okay because they're on the wrong side of the political specturm than you IS NOT OKAY.

And before any of you assholes tell me I'm not patriotic, or that I want America to fail, or that I want the terrorists to win, let me ask you how many times YOU'VE gone to one of those shitty third-world countries lately. In my family, we're going on six deployments. So, unless you're able to look at me and tell me you've done more than a total of five YEARS over there, just SHUT UP and take your "unAmerican" bullshit rhetoric and shove it.

I'm about as patriotic as they come and I love my country with a fierce pride. A lot of my fellow countrymen are pissing me off though.

KNOCK THAT SHIT OFF.

No love,
SoldierGrrrl

ETA: When I say "my family," I mean my husband, his best friend, our housemate, and me. My husband is currently deployed to Afghanistan, his best friend is in Iraq and I'm heading there at the end of the year-ish for the second time. Our housemate was in the initial invasion.

:::points over at Soldiergrrrl:::

What she said.

Alex, I'll take "Spawn of Satan" for $500

2010-03-23T22:03:00.002-05:00

When Representative John Lewis was a young man he did something incredibly brave, something that took more courage than most of us will show in our lifetimes, something that requires intestinal fortitude that seems sorely lacking in today's political discourse. John Lewis decided he was going to march with his brothers and sisters, that he was going to march with the Reverend Martin Luther King Jr. and those brave souls who joined him, that he was going to march from Selma to Montgomery in support of civil rights for all Americans regardless of the color of their skin.

Like so many in the march, Mr. Lewis was confronted with hatred and dogs and fire-hoses. He was beaten and beaten badly.

That is the Congressman who some Tea Party coward decided to call a nigger.

If there's anything you learn as a criminal defense attorney, it is this: in moments of stress and outrage, people show their true colors. And the Tea Party has been not only showing its true colors but emblazoning them across the sky in a hysterical glow bright enough to give Las Vegas at night a run for its money. For all of its pretense at Jeffersonian roots, it is nothing more but the unholy offspring of the militia movement and the KKK.

Makes one nostalgic for Rosemary's baby.

Another thing battering my idealism into a bloody pulp

2010-02-19T23:18:00.004-06:00

Anyone who thinks that electing appellate judges is a good idea need only come to Wisconsin.

Injecting politics into the process of choosing the appellate judiciary warps the law beyond anything recognizable to any honest citizen of a common law country.

To give but one example . . .

Precedent, and what it means, changes depending on whether the result of a case allows an appellate judge to portray himself as "tough on a crime," and the calculus is even more skewed when the defendant is a sex offender.

If you doubt me, try being appellate counsel for someone convicted of a sex offense.

And do not get me started on the amount of bad law, the amount of utterly illogical jurisprudence, the amount of case law utterly divorced from all that has come before that I have see emerge from cases with sex offender defendants.

It does not matter what the error of law is. It does not matter how contrary to any minimal notion of due process it is. It does not matter how badly it runs contrary to prior cases and statutes. If your client is a sex offender, you lose.

Cynical?

No.

It's only cynicism if the conclusion is not borne out by fact.

Because I am the bad guy

2010-02-09T18:11:00.004-06:00

There are very few universals in criminal defense work.

Except for the curve of gratitude.

And the fact that most clients lie to you at some point or another.

And the fact that, sooner or later, every prosecutor you have frequent contact with will end up thinking you are an unethical schlub. This holds true no matter how tightly you hold to the tenets of professional responsibility.

Sooner or later you will, in the course of representing your client, shine light on one of the State's screw-ups, which, since the State doesn't make mistakes, must mean that you're lying or gaming the system or something similarly nefarious.

Don't get me wrong, I tend to like and respect most of the prosecutors in my area. I believe that most of them genuinely believe in what they are doing and try to do their job well and fairly. There are even some prosecutors who have proved themselves trustworthy to the point where I am willing to take them at their word as a matter of course. I can even think of one local ADA who I deeply admire as an attorney and as a person.

That being said, there are hazards to representing the State. The world prosecutors operate in is a very black and white place. There is good and bad, with no shades of gray in between. They believe everyone they prosecute is genuinely guilty. Every last one of them believes that he is on the side of the angels, and the people he charges are deserving of the full weight of society's retribution.

This is something that they have to believe, or they wouldn't be able to do their jobs.

Think about it for a moment. Imagine what it would do to an ADA to believe that she had put an innocent man away. Her entire paradigm would be shattered.

Now, consider what happens over time. Or, more accurately, what can (and unfortunately often does happen). If you believe that your entire professional purpose is to protect the community from the forces of chaos, what happens when someone stands in your way? What happens when someone, through their actions, interferes with your ability to put away those people who you believe - to the core 0f your being - must be put away.

That is exactly what a criminal defense attorney does in an adversarial system.

Every so often, the State screws up. A clerical error leads to a police report not getting forwarded to the defendant until the day before trial. An overworked prosecutor does not double-check to be sure that a defendant's birthday would make him a legal adult at the time charges were filed. A police officer goes with the first possible suspect, failing to examine other potential avenues suggested by the evidence.

The defendant's attorney files the necessary motions, throwing a huge monkey-wrench into the State's case.

I can tell you from experience that, no matter what side you are on, it is incredibly frustrating to have the foundation pulled out from your case at the last second. The exasperation inherent in that kind of circumstance can make it very tempting to assume that the lateness is intentional rather than the result of circumstance. That, rather than reacting to the information as it is received, adversary counsel is pulling something hinky.

The fact that some attorneys do play fast and loose with the rules of professional conduct doesn't help matters. Neither does the fact that prosecutors assume they are on the side of the angels.

Another example of why everyone should have to read more case law . . .

2010-02-08T18:12:00.002-06:00

The best part about being an appellate attorney is running across gems like this:

Due process of law is the primary and indispensable foundation of individual freedom. It is the basic and essential term in the social compact which defines the rights of the individual and delimits the powers which the state may exercise. As Mr. Justice Frankfurter has said: "The history of American freedom is, in no small measure, the history of procedure." But, in addition, the procedural rules which have been fashioned from the generality of due process are our best instruments for the distillation an devaluation of essential facts from the conflicting welter of data that life and our adversary methods present. It is these instruments of due process which enhance the possibility that truth will emerge from the confrontation of opposing versions and conflicting data. Procedure is to law what scientific method is to science.

Justice Fortas, In re Gault, 387 U.S. 1, 20-21 (1967).

It's the little things that make the fourth wall shatter

2009-11-07T18:57:00.003-06:00

I used to adore crime shows like Law and Order. I must have watched every episode of the original series at least a dozen times over the years. And Perry Mason? When I was a little girl there was no television show I loved more.

And movies? Well, many of my favorites were, predictably, courtroom thrillers like Presumed Innocent, Primal Fear, The People vs. Larry Flynt, The Verdict (dating myself a bit with that one), and the list goes on.

No more.

I still love crime dramas and crime thrillers and whodunits of just about every shade, but I cannot watch any of them if - at any point - the action wanders into the courtroom. One of the many casualties of my job.

I can suspend my disbelief pretty well (I accepted the Star Trek "every alien is a humanoid" thing after all), but there are limits.

Case in point, an early episode of Criminal Minds, I was just watching on A&E or TNT or whatever channel it was. The serial killer this time around was a court reporter, which made for a rather intriguing concept. But, they spoiled it for me, by talking about how long it takes for a reporter to transcribe his notes, and chatting about it in such a way as to imply that reporters actually make transcripts for every proceeding they ever take notes for.

For the record, they don't. It would be impossible, to say nothing of mind-bogglingly wasteful (given the sheer number of utterly pointless court proceedings that take place every day). Court reporters take notes at every proceeding, but they only transform those notes into a transcript for those appearances that "matter."

So, how do reporters figure out which proceedings are important enough? Well, if a hearing matters, sooner or later, an attorney will request that a transcript be made. So, no, Jeff Davis (and everyone else involved in Criminal Minds), your serial killer would not have made transcripts of all of his notes.

:::sigh:::

And I used to enjoy television and movies.

A society is measured by how it treats its weakest members

2009-11-06T22:56:00.003-06:00

And who is the "weakest" among us if not our youth?

Not that this will necessarily mean much of anything to the current Court, but they at least have some opportunity to weigh in on the issue.

There is an excellent preview of the upcoming arguments in Graham and Sullivan here at SCOTUSBlog.

That Case™

2009-11-06T22:09:00.003-06:00

Every criminal defense or criminal appellate attorney eventually has to deal with That Case™ . . . the one that utterly breaks her idealism and creates the unbreakable foundation of a life-long cynicism.

That Case™ is, of course, different for every one of us.

Sometimes it's the client who you believed to be actually innocent, only to discover that everything he has told you is a lie.

Sometimes it's the client who has done a truly heinous thing, who you have to represent zealously despite your instinctive revulsion.

Sometimes it's the client for whom the law has no remedy. The client who is the recipient of a horrifically unjust result, for which there is no solution.

I've had all three in the last few months, and as much as I hate to admit it, the experience has fundamentally altered me, both as a practitioner and as a person.

These are not changes that I welcome or that, in any circumstance, I would have invited. But, they are par for the course.

The core of the mission for any criminal defense or criminal appellate attorney is to defend that which society has deemed indefensible. This is the natural result of our adversary system. Because we value so very strongly the eternal war against tyranny and because this war has always had as one of its principal battles the need to protect the individual from the punitive power of the State, there is no way for a defense attorney to honorably fulfill her role without fighting for the unpopular . . . for the unworthy.

The core of the Fourth, Fifth, and Sixth Amendments is this. In a nation where even the worst of the worst are granted the staunchest and most robust of protections, the good can rest easy that the State will not abuse its power and come after them. Which, of course, necessitates that the worst of the worst shall have someone battling for him.

Every one of us begins this war idealistically, believing (somewhat naïvely, many would argue) that we will defend the innocent and the wrongly accused, without ever having to deal with that moment when we realize that it really isn't that simple. And every one of us eventually has That Case™ . . . the one that forces upon us the harsh lesson that all is not as pure as we had originally presumed.

The key is not the nature of That Case™ itself, but how the practitioner recognizes it and, more critically, how she proceeds from it.

That is where my struggle is now, having not had one of That Case™ but three in a very short period of time.

I haven't a clue how, in the long-term, I am going to handle this. I just pray that I can find a way to balance the demands of my professional ethics against those of my personal morality.

I have come to believe that there are certain things that you just can't completely appreciate the wonderment of if you don't have kids

2009-10-16T17:57:00.002-05:00

You can always count on Texas

2009-09-17T13:51:00.002-05:00

The state that brought us the notion that an attorney who sleeps through part of the trial of a capital case is giving effective assistance of counsel has handed us another doozy.

According to the New York Times:

The highest criminal court in Texas ruled Wednesday that a man facing the death penalty for murder could not have a new trial despite a love affair between the prosecutor and the judge who tried his case.

Now, the court never actually got to the merits on this one. They punted it on the grounds that Mr. Hood should have brought up the affair in his original appeal (despite the fact that his attorneys were not able to confirm it until very recently). I tend to think this is a pretty transparent dodge, especially given the frequency with which courts use minor procedural flaws to avoid getting to the merits on tricky or embarrassing issues.

Why, you ask, would this be so tricky and embarrassing a thing for the court to deal with on the merits?

That's the real kicker.

Ms. Holland went on to serve on the Court of Criminal Appeals with all but one of the current members. “This decision by a court where eight of the nine judges once shared the bench with Judge Holland will only add to the perception that justice is skewed in Texas,” said Andrea Keilen, executive director of the Texas Defender Service, which represents Mr. Hood.

Setting aside the implication in Ms. Keilen's comment, I do not believe this is a purely Texan problem. Judges protect their own. That's reality whatever state you practice it. The results just seem to be particularly egregious sometimes in Texas.

More on this later

2009-09-11T19:52:00.000-05:00

Better that one hundred guilty men go free than one innocent man be put to death . . .

2009-09-01T18:52:00.004-05:00

Sometimes when I talk to folks about the death penalty, they default to the stance that it should be saved for those occasions when someone really, REALLY deserves it (the worst of the worst) and only be employed when there is irrefutable scientific evidence of the person's guilt.

The problem with that stance is that scientific evidence is as prone to errors in interpretation as anything else is. Check the error rate at a crime lab some time, and then extrapolate from there, and you will realize exactly how often "we know for sure" doesn't mean much more than "we think so."

And if you doubt that scientific error can lead to horrifying miscarriages of justice, consider the case of Cameron Todd Willingham.

The fire moved quickly through the house, a one-story wood-frame structure in a working-class neighborhood of Corsicana, in northeast Texas. Flames spread along the walls, bursting through doorways, blistering paint and tiles and furniture. Smoke pressed against the ceiling, then banked downward, seeping into each room and through crevices in the windows, staining the morning sky.
Buffie Barbee, who was eleven years old and lived two houses down, was playing in her back yard when she smelled the smoke. She ran inside and told her mother, Diane, and they hurried up the street; that’s when they saw the smoldering house and Cameron Todd Willingham standing on the front porch, wearing only a pair of jeans, his chest blackened with soot, his hair and eyelids singed. He was screaming, “My babies are burning up!” His children—Karmon and Kameron, who were one-year-old twin girls, and two-year-old Amber—were trapped inside.
* * *
Todd Willingham, looking on, appeared to grow more hysterical, and a police chaplain named George Monaghan led him to the back of a fire truck and tried to calm him down. Willingham explained that his wife, Stacy, had gone out earlier that morning, and that he had been jolted from sleep by Amber screaming, “Daddy! Daddy!”
“My little girl was trying to wake me up and tell me about the fire,” he said, adding, “I couldn’t get my babies out.”
While he was talking, a fireman emerged from the house, cradling Amber. As she was given C.P.R., Willingham, who was twenty-three years old and powerfully built, ran to see her, then suddenly headed toward the babies’ room. Monaghan and another man restrained him. “We had to wrestle with him and then handcuff him, for his and our protection,” Monaghan later told police. “I received a black eye.” One of the first firemen at the scene told investigators that, at an earlier point, he had also held Willingham back. “Based on what I saw on how the fire was burning, it would have been crazy for anyone to try and go into the house,” he said.

Crazy, but not surprising. Any loving parent would react in the exact same way to being forced to witness the worst thing possible . . . the loss of one's children and one's own inability to do a damn thing about it.

And that is how things would have ended, had the criminal justice system not swung into motion in one of its more atrocious acts of overzealousness. Mr. Willingham allowed arson investigators from the fire department to have access to his home, telling them that he at least hoped to find out why his little ones were taken from him. He did not anticipate what the "experts" would find.

[B]oth investigators had a clear vision of what had happened. Someone had poured liquid accelerant throughout the children’s room, even under their beds, then poured some more along the adjoining hallway and out the front door, creating a “fire barrier” that prevented anyone from escaping; similarly, a prosecutor later suggested, the refrigerator in the kitchen had been moved to block the back-door exit. The house, in short, had been deliberately transformed into a death trap.
* * *
The fire was now considered a triple homicide, and Todd Willingham—the only person, besides the victims, known to have been in the house at the time of the blaze—became the prime suspect.

And so the investigation went on, with Willingham as its target. Not surprisingly, after being asked enough questions the neighbors whose initial accounts of Willingham's behavior had portrayed a man shattered by the lost of his beloved children slowly transformed themselves into an account of someone who had behaved oddly, even suspiciously.

(Anyone who believes that the preconceptions of the officers asking questions does not impact the answers they receive just needs to spend a few days watching videos of police interviews. You'll be disabused on the notion quickly.)

It did not help that Willingham had grown up on the wrong side of the tracks and had something of a troubled upbringing. That sort of thing stays with you, especially when you're dealing with police officers, whose experiences create prejudices where the poor and disadvantaged are concerned.

Ultimately, the authorities concluded that Willingham was a man without a conscience whose serial crimes had climaxed, almost inexorably, in murder. John Jackson, who was then the assistant district attorney in Corsicana, was assigned to prosecute Willingham’s case. He later told the Dallas Morning News that he considered Willingham to be “an utterly sociopathic individual” who deemed his children “an impediment to his lifestyle.”

This despite the fact that everyone in the family insisted that, while Willingham had his flaws, he doted on and utterly adored his children.

And from there the case proceeded as you might expect it to, with a capital murder trial at which the star witnesses were the State's "expert witnesses" and a jailhouse informant (I trust I need not explain why the latter's testimony is inherently unreliable).

Willingham had been offered the opportunity to plead guilty in return for a life sentence, but he turned it down, insisting with every breath that he was innocent . . . that he had not killed his babies.

It took just over an hour for the jury to convict.

Years later, someone began to ask questions. And thanks to the persistence of one person, the evidence in Willingham's case finally got another real look.

One day in January, 2004, Dr. Gerald Hurst, an acclaimed scientist and fire investigator, received a file describing all the evidence of arson gathered in Willingham’s case. Gilbert had come across Hurst’s name and, along with one of Willingham’s relatives, had contacted him, seeking his help. After their pleas, Hurst had agreed to look at the case pro bono, and Reaves, Willingham’s lawyer, had sent him the relevant documents, in the hope that there were grounds for clemency.

Dr. Hurst's findings were, to say the least, not supportive of the State's case.

As Hurst looked through the case records, a statement by Manuel Vasquez, the state deputy fire marshal, jumped out at him. Vasquez had testified that, of the roughly twelve hundred to fifteen hundred fires he had investigated, “most all of them” were arson. This was an oddly high estimate; the Texas State Fire Marshals Office typically found arson in only fifty per cent of its cases.
Hurst was also struck by Vasquez’s claim that the Willingham blaze had “burned fast and hot” because of a liquid accelerant. The notion that a flammable or combustible liquid caused flames to reach higher temperatures had been repeated in court by arson sleuths for decades. Yet the theory was nonsense: experiments have proved that wood and gasoline-fuelled fires burn at essentially the same temperature.
Vasquez and Fogg had cited as proof of arson the fact that the front door’s aluminum threshold had melted. “The only thing that can cause that to react is an accelerant,” Vasquez said. Hurst was incredulous. A natural-wood fire can reach temperatures as high as two thousand degrees Fahrenheit—far hotter than the melting point for aluminum alloys, which ranges from a thousand to twelve hundred degrees. And, like many other investigators, Vasquez and Fogg mistakenly assumed that wood charring beneath the aluminum threshold was evidence that, as Vasquez put it, “a liquid accelerant flowed underneath and burned.” Hurst had conducted myriad experiments showing that such charring was caused simply by the aluminum conducting so much heat. In fact, when liquid accelerant is poured under a threshold a fire will extinguish, because of a lack of oxygen. (Other scientists had reached the same conclusion.) “Liquid accelerants can no more burn under an aluminum threshold than can grease burn in a skillet even with a loose-fitting lid,” Hurst declared in his report on the Willingham case.
Hurst then examined Fogg and Vasquez’s claim that the “brown stains” on Willingham’s front porch were evidence of “liquid accelerant,” which had not had time to soak into the concrete. Hurst had previously performed a test in his garage, in which he poured charcoal-lighter fluid on the concrete floor, and lit it. When the fire went out, there were no brown stains, only smudges of soot. Hurst had run the same experiment many times, with different kinds of liquid accelerants, and the result was always the same. Brown stains were common in fires; they were usually composed of rust or gunk from charred debris that had mixed with water from fire hoses.
Another crucial piece of evidence implicating Willingham was the “crazed glass” that Vasquez had attributed to the rapid heating from a fire fuelled with liquid accelerant. Yet, in November of 1991, a team of fire investigators had inspected fifty houses in the hills of Oakland, California, which had been ravaged by brush fires. In a dozen houses, the investigators discovered crazed glass, even though a liquid accelerant had not been used. Most of these houses were on the outskirts of the blaze, where firefighters had shot streams of water; as the investigators later wrote in a published study, they theorized that the fracturing had been induced by rapid cooling, rather than by sudden heating—thermal shock had caused the glass to contract so quickly that it settled disjointedly. The investigators then tested this hypothesis in a laboratory. When they heated glass, nothing happened. But each time they applied water to the heated glass the intricate patterns appeared. Hurst had seen the same phenomenon when he had blowtorched and cooled glass during his research at Cambridge. In his report, Hurst wrote that Vasquez and Fogg’s notion of crazed glass was no more than an “old wives’ tale.”
* * *
Without having visited the fire scene, Hurst says, it was impossible to pinpoint the cause of the blaze. But, based on the evidence, he had little doubt that it was an accidental fire—one caused most likely by the space heater or faulty electrical wiring. It explained why there had never been a motive for the crime. Hurst concluded that there was no evidence of arson, and that a man who had already lost his three children and spent twelve years in jail was about to be executed based on “junk science.”

So, the evidence was in. Willingham was exonerated and freed from prison with many apologies from the State and everything was all right in the long run.

That is how things turned out, right? Right?

No.

On February 13th, four days before Willingham was scheduled to be executed, he got a call from Reaves, his attorney. Reaves told him that the fifteen members of the Board of Pardons and Paroles, which reviews an application for clemency and had been sent Hurst’s report, had made their decision.
“What is it?” Willingham asked.
“I’m sorry,” Reaves said. “They denied your petition.”
The vote was unanimous.

Cameron Todd Willingham was executed by lethal injection on February 17, 2004.

The possibility of executing an innocent man has been one of the rallying-cries of the anti-death penalty movement for years now, but judges and district attorneys have always been able to point to the "fact" that there was no solid reason to believe that any innocent person had ever actually been executed. Mr. Willingham's case is unusual in that it provides the first real evidence that the death penalty does lead to the execution of the innocent.

In one other regard, this case was unusual.

Unlike many other prosecutors in the state, Jackson, who had ambitions of becoming a judge, was personally opposed to capital punishment. “I don’t think it’s effective in deterring criminals,” he told me. “I just don’t think it works.” He also considered it wasteful: because of the expense of litigation and the appeals process, it costs, on average, $2.3 million to execute a prisoner in Texas—about three times the cost of incarcerating someone for forty years. Plus, Jackson said, “What’s the recourse if you make a mistake?” Yet his boss, Batchelor, believed that, as he once put it, “certain people who commit bad enough crimes give up the right to live,” and Jackson came to agree that the heinous nature of the crime in the Willingham case—“one of the worst in terms of body count” that he had ever tried—mandated death.

As it turns out, Attorney Jackson should have trusted his first instincts.

What's the recourse, indeed?

Go to the link and read the whole thing. It's long, but it's worth it.

:::watches as her eyes roll right out of her head:::

2009-08-31T13:32:00.002-05:00

Disney is buying Marvel.

Yep.

Anyone care to take a wager on how long it will be before the first Spider-Man / Hannah Montana crossover?

Somehow this seemed appropriate for today

2009-08-26T18:32:00.000-05:00

So live your life that the fear of death can never enter your heart. Trouble no one about their religion; respect others in their view, and demand that they respect yours. Love your life, perfect your life, beautify all things in your life. Seek to make your life long and its purpose in the service of your people. Prepare a noble death song for the day when you go over the great divide. Always give a word or a sign of salute when meeting or passing a friend, even a stranger, when in a lonely place. Show respect to all people and grovel to none. When you arise in the morning give thanks for the food and for the joy of living. If you see no reason for giving thanks, the fault lies only in yourself. Abuse no one and no thing, for abuse turns the wise ones to fools and robs the spirit of its vision. When it comes your time to die, be not like those whose hearts are filled with the fear of death, so that when their time comes they weep and pray for a little more time to live their lives over again in a different way. Sing your death song and die like a hero going home

.
--Chief Tecumseh, Shawnee Nation

Because bad days call for sharing a little smile with the Universe . . .

2009-08-25T19:20:00.001-05:00

Well, I've got to give them some points for originality

2009-08-25T19:14:00.002-05:00

Like many drug dealers with a successful business, the Castro brothers had a serious cash flow problem. Not with income. They had plenty of that. But with that classic problem of all criminals engaged in a remunerative enterprise.

How on earth do we take all this cash and turn it into something less suspicious?

The Castro brothers hit upon a pretty ingenious answer to the question. Launder the money by purchasing classic comic books.

While arresting the alleged ringleaders, brothers Aaron and Alfonzo Castro, law enforcement officers seized about 100 boxes of first-edition collectible comic books. Investigators say one title alone is worth $3,500 and the total collection of comics is worth half a million dollars.
"It appeared they were working on a startup company for high-end comic books," said Don Quick, the district attorney in Adams County near Denver.
Quick said the seized comic books included some first-edition Superman and Batman titles. The fragile, vintage comics were stored in plastic bags for protection.

This is actually a pretty good example of why drug dealers frustrate me. The ones who are good at what they do have the imagination necessary to be great entrepreneurs . . . if only they would direct their intelligence and imagination toward something LEGAL.

There are things that I am avoiding talking about..

2009-08-22T17:06:00.002-05:00

Thankfully, Howie Magner over at Milwaukee Magazine suffers no such malady.

Here's a tip. If Brett Favre ever tells you that the world is round, the sky is blue and water is wet, don't believe him.

You can read the rest here (at least until it goes to archives and I have to change the link).

I'll stop calling you crazy when you stop saying crazy things.

2009-08-22T16:55:00.003-05:00

For your Friday Night viewing pleasure . . . feline psychosis!

2009-08-21T19:35:00.003-05:00

And now for something completely different . . .

2009-08-21T17:46:00.000-05:00

Bring on the mob

2009-08-14T17:44:00.003-05:00

Things are getting ugly, and they are getting ugly fast, as this recent piece from The Rachel Maddow Show demonstrates all too well. When you get to the point where an issue is causing people to make threats of assassination against elected leaders . . . well, that's some pretty scary territory, folks.

And over what? The possibility that we might finally do something to fix the utter SNAFU that is our current health care system?

Is the House's bill perfect? Of course not. But that's why we have two houses in our legislature, and an executive branch equipped with veto power . . . to stop anything truly moronic from getting through. And even if something imperfect is passed, well there's this lovely thing about our legal system, laws are endlessly capable of being tweaked. Heck, that's what most bills do. "Change USC Section 9999.99 to read X" when it had previously read "Y".

So, we have a way to fix things when the initial version is flawed, as all initial versions are (they beta-test software for a reason, folks). And, frankly, this is not the sort of legislation that creates an existential threat to our constitutional order.

But the powers that be have decided that this is a threat to them, so they are out in full force, with their marketing machine and its capacity to terrify.

Assassination encouraged so someone's profit margin can be protected.

Lovely.

Because some things need to be repeated and repeated and repeated, until the truth finally drowns out the scare tactics

2009-08-13T20:37:00.001-05:00

Random Observation

2009-07-29T18:56:00.002-05:00

A lot of folks are talking about what the incident in Cambridge involving the Cambridge P.D. and Professor Gates says about race in our society.

Personally, I think it says a lot more about how ridiculously vague and all-purpose the concept of disorderly conduct is.

But maybe that's just the defense attorney in me talking.

Sometimes the thing speaks for itself

2009-07-22T19:04:00.001-05:00

And that's the way it is

2009-07-20T21:02:00.002-05:00

Michael Jackson.

Farrah Fawcett.

Ed McMahon.

The deaths of these folks really didn't bother me.

Frankly, I barely registered their passing (well, with the exception of MJ, but that had more to do with the ubiquitous media coverage than any personal concern or feeling for it).

Walter Cronkite, however, was a very different story.

When I was a little girl, there were three men in public life who acted as my role models . . . an important substitution for a little girl without a father. Three men whose passion for excellence, love of their work, and obvious love of living and of mankind I hoped one day to be able to emulate. Robert Heinlein. Carl Sagan. And Walter Cronkite.

With Cronkite's passing, all of them are officially gone.

And so, late Saturday night / early Sunday morning I found myself sitting in front of the television, watching CNN while tears poured unheeded down my cheeks.

And as I sat there I could not help but wonder at what it says about our culture when a pop star's passing is marked by a great national orgy of morning while the passing of a true hero and icon is marked well by journalists, but only by them.

I just hope that Mr. Cronkite has a good seat when we finally take the step that is the natural second pace after that one small step taken forty years ago by Neil Armstrong.

May the Nature Spirits guide him home,
May the Honoured Dead welcome him among them,
May the High Ones grant him rest and rebirth in due time.

There will be a returning for him.

Be well, Mr. Cronkite. Be well. And don't leave us without your voice for too long.

Oh, but innocent people are NEVER convicted!! (Observe the use of the sarcasm font)

2009-07-16T20:53:00.004-05:00

Once again, DBB is there to unintentionally nudge me into posting about something that I have been avoiding writing about as it is wretchedly painful . . .

I have actually stood next to a client and watched him enter a plea, knowing to the core of my being that he was innocent of at least one of the crimes of which he was charged.

Okay, let's back up a bit and take this from the start, with as much detail as the canons of ethics will allow.

About a year ago, I was appointed to the case of a gentleman who insisted he was innocent of at least one of the crimes of which he was charged. Now, protestations of innocence are not uncommon, as any criminal defense attorney who has practiced more than five seconds can tell you, but I actually believed this guy.

Why?

Well, for a few reasons.

First, he acknowledged that he was guilty of one of the crimes of which he was charged. This is not terribly common . . . to say the least . . . and what made this guys case all the more remarkable was that he was ready (almost eager) to enter a plea to the crime (out of all of the things he had been charged with) that carried the most serious penalty. Needless to say, this is not even close to being par for the course.

Second, the evidence lined up as well . . . better actually, once I did all of my investigating . . . with his version as with the State's version. And, with most folks who protest their innocence that is most definitely not the case.

So, there we were.

From day one, he was willing to enter a plea and take responsibility for what he had done. But he could not bear the notion of entering a plea to something that he had not done.

But the State would not budge. It wanted a plea to both.

So, there we were. Me and my client. With me convinced of his innocence and sitting there with complete fact mastery and more prepared to go to trial, to throw down the gauntlet, and to battle to the metaphorical death for my client. And with my client six shades of thrilled that I was as gung-ho and ready to go as he was.

Then, the day before trial, the State offered to make a sentencing recommendation that was . . . well, so good that I would have been committing malpractice had I not told my client that even thought he was holding a straight, now was the time to fold and enter a plea.

Now, fortunately, Wisconsin does have a mechanism called an Alford plea, which essentially allows the defendant to enter a sort of super-charged version of a no contest plea. Basically, the defendant pleads guilty, while stating on the record that he is not guilty but that he is entering the plea because the risk of conviction is great enough to make it the more sensible course.

So, my client entered a guilty plea to the count that he had always acknowledged he had committed and an Alford plea to the count he had always maintained he was innocent of. No need for him to perjure himself and no need for me to suborn perjury. And he ended up getting an extremely good sentencing recommendation from the State.

None of which made it any easy for either of us.

For the record, that plea hearing was the most painful thing I have had to do to date. After it was done, I went out to my car, bawled my eyes out, and then drove back to the office while blasting Nine Inch Nails.

Yeah, there's a reason we burn out.

And, more importantly, there's a reason the criminal justice system needs some SERIOUS tweaking if its ever to have any hope of actually becoming a system of justice rather than a system of laws.

Well, that's one way to do it without inter-continental trading. . .

2009-06-15T20:44:00.001-05:00

No need to have the Welsh trade all their vowels to Hawaii in this case.

see more Lolcats and funny pictures

Requisicat in Pace, Doctor Tiller

2009-06-01T22:15:00.000-05:00

May the Nature Spirits guide him home,
May the Honoured Dead welcome him among them,
May the High Ones grant him rest and rebirth in due time.

There will be a returning for him.

As if I needed an excuse to buy the new Lily Allen album

2009-05-28T20:01:00.001-05:00

The Economics of the State Public Defender Private Bar, Or How to Work Eighty Hours a Week and Still be on Food Stamps

2009-05-23T19:49:00.004-05:00

I have avoided posting this for some time, principally because I hate feeling like I am whining, but I have come to realize that there are things in this world that nothing gets done about unless someone - preferably several someones - start up a ruckus.

In Wisconsin, if you are indigent and you are accused of a crime, your representation is generally provided through the State Public Defender's office. Now, there is no way that the staff offices in each county can handle all the cases (principally because of conflicts and other similar factors) so a certain number (i.e., quite a few) are farmed out to private attorneys who have agreed to take public defender appointments.

Sounds cush, eh? You just sit there and the clients are steered to you. And, I suppose it might be if SPD private attorneys were allowed to bill at anything approaching even the low end of the market average.

Do you know what these private bar attorneys are allowed (by statute) to bill (a rate that hasn't changed in decades)?

Forty dollars an hour.

Now that may sound like quite a bit. Frankly, a few years ago I would have looked at forty dollars an hour as something amazing, but you have to step back for a moment and remember one thing. That's not what I get paid for public defender appointments; it's what I can bill. There is a critical difference between the two things.

You have to think of an attorney not as an individual who is out making a certain amount per trick but as the principal machine in a small business (the press in a small print shop, or example). The attorney's billable hours are not the attorney's pay, they are the business's income.

So, what happens to that income? Well, like any business, an attorney has overhead, and dear gods does an attorney ever have overhead. And we're not talking fancy office space either; in some cases, we're not talking any office space at all (as many private bar attorneys work out of their homes and maintain P.O. Box addresses as their business address).

What does this overhead consist of?

Bar dues. Unlike many states, Wisconsin requires that all attorneys be members of the State Bar, and dues run in the hundreds of dollars every year.
CLE courses. Continuing Legal Education. Every attorney must attend a certain number of hours of classes in order to retain her license to practice. These courses are not free. Quite the contrary. Again, we're talking hundreds of dollars each year.
Malpractice insurance. This is also not optional, for reasons that doctors have already learned all too well, and the premiums aren't going down any time soon.
A computer, the necessary software, and internet access. This, also, is no longer optional.
Staff. Increasing numbers of attorneys are doing without any staff, but there is a trade-off involved. Anything your staff would have done, you now have to do yourself, and most of it is work that you cannot bill for.
Lexis or Westlaw access. Admittedly, there are venues through which one can obtain caselaw for free, but they tend to have such inefficient search engines that they do more harm than good. So, some form of access to Lexis or Westlaw really is a must, at least it is if you ever plan to file an effective motion at any point in your professional life.
A cell phone. This is not optional either, even for the most pared down practice.
Utilities. Even if you're working out of your home, the demands of your work will increase the size of these bills.
Office supplies. This is a huge and varied list, and even for the most pared down practice it runs in the thousands of dollars.

And that, really, is only a partial list of the things that have to come out of that forty dollars an hour before the attorney gets paid.

But there's more.

Unlike most legal jobs, billing on an SPD case isn't done monthly as things go along. Oh no. The bill is submitted after the case is completed. So, as the case is pursued, any expenses come out of the attorney's pocket, for later reimbursement.

Need an expert? You bear the up front cost (unless you can find an expert willing to wait months for payment), assuming you can approval of the cost from the SPD (which you have to get in advance) and assuming that you can find an expert who is willing to work for the rates that the SPD is willing to pay (which, not surprisingly, are well below market average).

Want to add more insult to injury?

When you submit your bill, SPD will peck away at any expense it thinks is unreasonable or any billed hours it thinks are higher than they deem necessary. (The people who make these decisions are, incidentally, not attorneys.)

The final indignity?

In more years than not, the SPD runs out of money to pay their private bar attorneys some time in late winter or spring. So, any bills submitted after mid-March (or thereabouts) on stand a fair chance of not being paid until July. These months of no pay are typically called "the drought," and if you don't have an established line of credit you can draw on . . . well, you can imagine what this does.

One of these days, I will learn to take my own advice . . .

2009-05-23T19:44:00.001-05:00

Apparently, that day is not today.

So, a little over a month ago I announced that I was closing this little venture down. That I just wasn't posting often enough to make this blog worth wasting the bandwidth.

::::shakes head at self::::

So much for retiring and staying there.

Turning out the light

2009-04-15T17:28:00.002-05:00

Okay, it's time to turn out the light.

I have just been too busy to even imagine posting semi-regularly any more, so it's better to let this one go than take up the bandwidth.

Thank you to my readers . . . . all five of you. Believe it or not, I will miss this place.

Another for my collection . . .

2009-03-27T21:00:00.002-05:00

Like most attorneys with a pulse, I have a real weakness for lawyer jokes.

Here's this week's . . . brought to you by the letter N, the letter R, and the number 2.

A Mafia Godfather finds out that his bookkeeper has cheated him out of
ten million bucks. His bookkeeper is deaf. That was the reason he got the
job in the first place. It was assumed that a deaf bookkeeper would not
hear anything that he might have to testify about in court.

When the Godfather goes to confront the bookkeeper about his missing $10
million, he brings along his attorney, who knows sign language.
The Godfather tells the lawyer, "Ask him where the 10 million bucks he
embezzled from me is." The attorney, using sign language, asks the
bookkeeper where the money is. The bookkeeper signs back: "I don't know what you are talking about."

The attorney tells the Godfather: "He says he doesn't know what you're
talking about." The Godfather pulls out a pistol, puts it to the bookkeeper's temple
and says, "Ask him again!"

The attorney signs to the bookkeeper: "He'll kill you if you don't tell him!"
The bookkeeper signs back: "OK! You win! The money is in a brown briefcase,
buried behind the shed in my cousin Enzo's backyard in Queens!"

The Godfather asks the attorney: "Well, what'd he say?"

The attorney replies: "He says you don't have the guts to
pull the trigger."

Friday Random Ten

2009-03-27T16:56:00.004-05:00

1. Suffragette City - David Bowie
2. Two and Two - Jesus Jones
3. Brown Eyed Girl - Everclear
4. I Prefer - Ministry
5. Tenth Avenue Freeze Out - Bruce Springsteen
6. Tell Me Why (The Riddle) - Paul Van Dyk
7. Fallen on Hard Times - Jethro Tull
8. Mama - Beth Hart
9. Volvo Driving Soccer Mom - Everclear
10. Punk Rock Girl - Dead Milkmen

This is one of the reasons one shouldn't retire until one REALLY means it . . .

2009-02-11T22:01:00.001-06:00

Brett Favre retired . . . again.

Damned if I can get up enough gumption to care.

What was that about leaving women behind?

2009-01-31T18:27:00.004-06:00

During the primaries, I took a fair amount of grief from my sisters for my unabashed and unreserved support of President Obama. To the point where I actually stopped talking about politics at all for weeks on end.

Over and over and over again I was told that I did not understand why Secretary of State Clinton's candidacy was so important, and I was repeatedly treated as a traitor to my gender, and as a know-nothing neophyte for my choice of candidates.

"I just don't trust him on women's issues."

That's what I was told.

And, frankly, I understood where the hesitancy originated.

That being said, my reasons for supporting President Obama were as tied to my feminism and my identity as a woman as anything else. As an attorney, as a professional woman, and as an attorney, all it took was becoming familiar with the work and character of the First Lady. No man marries and obviously adores such a strong woman unless he actually gets it.

Add in the fact that the President has daughters (and as the mother of a brilliant, beautiful, bull-headed daughter I understand all too well the impact that has), and I felt secure putting some faith in President Obama.

It has been so wonderful to have my faith repaid in kind.

It seemed to be all about Lilly Ledbetter at the White House yesterday -- her name was enshrined in history, affixed to the first piece of legislation signed by President Obama. He presented the former Goodyear plant supervisor with a pen he used at the East Room signing ceremony and said, "This one's for Lilly."

But the day belonged to Michelle Obama, too. She wasn't on the stage with her husband, but she was there watching, and her stamp was on the new fair-pay law that Democrats have pushed since 2007. Its signing represented a concrete example of the first lady's interest in domestic policy, women's advocates say, and signaled her determination to push the concerns of working women and families to the forefront of national debate.

The President does not appear to do anything by accident, and it certainly isn't by accident that the Lily Ledbetter Equal Pay Act was the first piece of legislation the new President signed into law.

Jill, over at Feministe, perfectly captures the contrast between the two Administrations.

Did I drop that crack on the sidewalk, officer?

2009-01-30T23:33:00.004-06:00

Power, of course, corrupts, and absolute power, not surprisingly, corrupts absolutely.

Or so the old saw goes.

So it should, perhaps, not be terribly surprising that those who have power in our society sometimes - okay, more than sometimes - are corrupted by it.

And, yet, we cling to the notion of the inviolability of authority, and the common man and woman continue to stake their everyday existence on the simple article of faith that the police never cut corners, never make assumptions, never outright lie to get from Point A to Point B.

Of course, as a defense attorney, I could be accused of some bias in my reaction to a recent piece in The Wall Street Journal.

It's one of the most common accusations by defendants and defense attorneys -- that police officers don't tell the truth on the witness stand.

Now, I am not a drinker of the "the State is out to get everyone" Kool-Aid, but I do have to acknowledge what experience has taught me.

The accusation has more truth in it than falsity.

Questionable testimony by police comes up most often in firearm- or drug-possession cases in which officers often testify that a defendant had a bulge in his pocket -- which they thought might be a gun -- or dropped drugs in plain sight as they approached him, giving the officers the right to seize the contraband.

I wish I could say that it was some sort of in-bred cynicism that made me look at this and nod as if the author were saying "the sky is blue," but I can't. It's a lesson of hard experience, and the fact that this lesson was learned so very well so early in the game is, in itself, indicative of a larger problem.

None of this, of course, is to imply that the officers involved are generally evil.

Though few officers will confess to lying -- after all, it's a crime -- work by researchers and a 1990s commission appointed to examine police corruption shows there's a tacit agreement among many officers that lying about how evidence is seized keeps criminals off the street.

The ends justify the means.

That, at any rate, appears to be the rationale driving things. A rationale that tells us an awful lot about convenient justifications.

You see, I have had the opportunity to become acquainted with more police officers (and, most especially, more narcotics cops) than I even care to think about, and in my experience the overwhelming majority of them are genuinely good people who desperately want to make a better place of their community.

The problem is that they have a unique position of power, from which they can act to do things that they perceive as making the community better . . . provided they are willing to cut a few corners.

Fortunately, the Founders understood this.

Unfortunately, the current Court does not seem to have quite gotten the Net.

How many words is a picture worth again?

2009-01-30T23:17:00.001-06:00

One of the reasons I adore Jill over at Feministe . . .

She has a way of encapsulating things perfectly.

Friday Random Ten - The "I Am Still Mourning the Lack of Awards for BSG" Edition

2009-01-30T21:05:00.002-06:00

The Sex Has Made Me Stupid - Robots in Disguise
Guitar Song - The Dead Milkmen
Turning Japanese - The Vapors
Fable (Dream Version) - Robert Miles
Face to Face - Paul Van Dyk
Golden Years - David Bowie
How Far We've Come - Matchbox Twenty
Princess of Light - Robert Miles
Puttin' On the Ritz - Fred Astaire
Only the Good Die Young - Billy Joel

The funniest thing I've seen all month . . .

2009-01-28T21:17:00.004-06:00

I swear, sometimes I think that Non-sequiter is the best comic to come along since Bloom County.

Trust me, and go here.

I am the polar opposite of a Federalist, but . . .

2009-01-27T20:09:00.003-06:00

. . . I have to admit to being more than a little envious in light of this story.

Dayum! Why couldn't I have had Scalia (or any Supreme Court Justice) as a competition judge back when I was in Moot Court.

My kingdom for a trial . . .

2009-01-27T19:16:00.004-06:00

When I first started, one of the partners at my firm warned me that I would prepare for far more trials than I would actually take part in. He warned me that the difference between the prepared for and the actually done would be exponential.

I didn't really buy it at the time. I figured that if things got far enough along for me to be preparing jury instructions and proposed verdict forms there was no way that the thing would settle.

Oh, how very wrong I was.

Now, I get to tell the new guys (me, from my lofty "been doing this a year" veteran's perch) the same thing that my boss told me.

So, why do things work out this way?

Well, I can assure you that it isn't from willingness on the part of defense counsel to get up and battle in front of a jury. Frankly, I look forward to that sort of thing.

No, the difference is a part of the nature of the beast.

If you are defending a case with enough charges, especially if there are enough felony charges, and you are demonstrably willing to go to trial (and, even better, if you've had some success in your motion practice, but not enough to get the State to dismiss its case), the State will eventually get to the point where it offers something too sweet for you to walk away from.

Generally, they get to this point on the day before trial.

I won't lie; it's frustrating. By that point you have prepared and prepared and prepared.

You know the facts of the case better than you know the birthdays of your children. (Sadly, not an exaggeration.) Your opening is sketched out. Your major points of direct and cross-examination are ready to go. All of your subpoenas are out, your exhibits are ready to go, and you have prepared for every evidentiary issue you can even begin to anticipate.

In short, you are READY.

Then the State calls, and this is how the conversation goes:

"Tell you what," the State says, "I know I charged six felonies, but if your client will enter a plea to two of them, I will dismiss the rest, and I will only recommend two years in prison, despite the fact I could ask for ten for those two charges."

"I'll take it to my client," you say, trying to sound noncommital, "and I'll get back to you and let you know the answer."

Of course, you both know what will happen.

You see, there's only one way that the cost-benefit analysis can come out. If your client goes to trial and is convicted of all six felonies, the worst case scenario is thirty-five years in prison. If your client enters a plea to two felonies, the worst case scenario is ten years in prison.

Doesn't take a genius to figure out what you, as a good attorney and guardian of your clients legal well-being, must advise.

For the record, this is how innocent people end up in prison.

Friday Random Ten - the "It's Still Friday Where I Am Gosh Darn it to Heck and Back" Edition

2009-01-23T21:33:00.004-06:00

Well, it was Friday when I started this post at any rate . . .

Time Won't Let Me Go - The Bravery
Back to the Rivers of Belief - Enigma
Stuart - The Dead Milkmen
Brown Eyed Girl - Everclear
Orange Crush - R.E.M.
Disappointed - Public Image Ltd.
Never Be Alone (Erol Alkan Bugged Out Mix) - Simian Mobile Disco
Undestructible - Gogol Bordello
Space Oddity - David Bowie
Hustle Rose - Metric

On a completely separate note, does anyone know who actually created the first "Friday Random Ten"?

My kingdom for a television

2009-01-20T20:50:00.003-06:00

One of the hazards of the profession is that it is remarkably difficult to ensure that one is free for the important things in this nation's life.

Today, for example, I was due to be in court during the inauguration.

Fortunately, the hearing took less time than expected, and I was able to listen to President Obama take his oath and give his inaugural address while driving back to the office.

Of course, I was tearing up so much that it's a wonder I didn't drive off the road.

Still, it would have been nice to see.

So, as a public service, for anyone else who wasn't in range of a television set (out of the ten people who read this blog) . . .

Damn, but it's nice to have a President who can speak in full sentences and who can actually write his own speeches and do it well.

It's only a matter of time

2009-01-19T18:59:00.003-06:00

I'm sitting here, watching Richard Schiff chat with Chris Matthews on Hardball, and I find myself thinking about the course I took back in undergrad about the interaction between politics and the media in the twentieth century.

Which got me thinking . . .

I wonder how long it will take for some PhD student somewhere to decide to write a dissertation on the relationship between the popularity of The West Wing and the election of Barack Obama.

It's a system of laws, not a system of justice

2009-01-16T19:54:00.003-06:00

Imagine this for a moment . . .

You're seventeen years old. You've been dating the same person, who will be turning sixteen in about two months, for a year now. After thought, conversation, and some action to make sure prophylactics are handy, the two of you decide that you're going to have sexual intercourse.

The day after the deed is done, there's some chatting on the part of your significant other with your circle of friends, and your school's Liaison Officer (a local cop assigned to the school) hears the chatter and calls both of you into his office.

Neither of you wants to discuss the issue, but he seems a kindly concerned person, and you just want to assure him that nothing terrible happened, so you both admit that the intercourse happened, and you both assure him that it was consensual.

And you figure all is well.

Then, about a month later, you get a summons and complaint in the mail, informing you that you are being charged with Second Degree Sexual Assault of a Child. It's a Class C felony, which means that, if you're convicted, you'll face a maximum forty years imprisonment.

Now, you've done everything right throughout your life. Done well in school. Stayed out of trouble. Even volunteered at the local Red Cross. So, your attorney tells you that you probably won't end up serving any prison time. You'll be on probation for a while . . . likely for a long while, but that's survivable, right?

And, if your attorney actually reads his statute book and exerts at least a minimum of effort, you'll be able to avoid having to register as a sex offender for the rest of your life. Thankfully, you and your significant other are close enough in age for that much.

But, you'll still be a felon.

Now try having the life you'd planned on. Try getting into college. Try getting a good job. Try spending the rest of your life explaining this to everyone you meet and become close to for the rest of your life.

Sound like a nightmare?

Sound like something out of a bad science fiction novel?

Sound like something that couldn't possibly happen?

Unfortunately, it happens a lot here in Wisconsin.

You see, under Section 948.02(2) of the Wisconsin Statutes, it is a class C felony for anyone to have sexual contact or sexual intercourse with anyone under the age of sixteen. And, under Wisconsin law, once you turn seventeen you can be prosecuted as an adult.

Needless to say, I am not looking forward to the teenage years of either of my children.

And, that is to say nothing of the frustration inherent in trying to represent good people who are caught up in the unintended consequences of this particular combination of laws.

Precisely

2009-01-16T09:54:00.003-06:00

From the MSNBC story noting the passing of John Mortimer, noted attorney and prolific writer:

His legal career took in everything from divorce cases to murders — and he said he preferred the latter.
“Matrimonial clients hate each other so much and use their children to hurt each other in beastly ways,” he once said. “Murderers have usually killed the one person in the world that was bugging them and they're usually quite peaceful and agreeable.”

On the off chance there was any doubt

2009-01-13T08:48:00.002-06:00

There's an odd, squinchy look that people get on their faces when I tell them I am a criminal defense attorney. A look that is generally followed with either some denigrating comment about my character or a sympathetic look and a query about how I manage.

Well, when it comes to the latter reaction, my response is always to the effect of . . .

"It could be worse, I could be doing family law."

And if you doubt for a second that family law is as bad as it gets as far as exasperating clients are concerned, take a look at this little gem from the BBC.

I love it when someone restores my faith in humanity

2009-01-10T19:09:00.003-06:00

Okay, I am not a big fan of Eddie Izzard.

Nothing wrong with him; his comedy just isn't my cup of tea.

That being said, I have to note that somebody did something very right in raising that man.

Why so quiet, little one?

2008-12-30T21:44:00.002-06:00

Nearly a month since I last posted an update to this blog . . . not out of character, to be sure . . . though it does occasionally make me wonder about why that should be, especially given how virtually compulsive I ave been about writing for most of my life.

It isn't that I don't think I have anything to say. You don't make it through law school without having enough ego and self-centeredness to at least be somewhat convinced of the fascinating nature of your own internal voice.

At the end of the day, what it comes down to is this . . .

Several months ago I re-tasked this blog and determined that it's primary focus would be to serve as a mirror for my reflections on life in the profession.

And then I went silent, principally because I realized that any honest reflections on the work would be bound to make me sound endlessly bitter and angry.

Criminal defense work is not something that breeds idealism and happy, shiny thoughts.

So, how to be honest about the work without leading folks to conclude that I despise my job?

That would be the $64,000 question, wouldn't it?

Enough already . . . too much already

2008-12-04T08:06:00.002-06:00

The Prime Minister of Kenya is calling for African nations to engage in some sort of cooperative action to oust Robert Mugabe from his perch atop the government of Zimbabw e. A call that comes later than it should have, in my opinion.

Then again, given the way my home country has ignored Zimbabwe's ever more rapidly deteriorating situation, I don't exactly have the most firm ground on the planet to stand on when it comes to other nations' reactions.

So, for those of you who haven't been keeping track . . .

Zimbabwe's economy has been a wreck for years, with chronic shortages and inflation levels that make my brain hurt.
Basic health services in a system that was once the envy of the continent have almost completely broken down.
Cholera has been running rampant, and has been taking more lives that is common for a disease that is easily treated with adequate sanitation, hydration, and antibiotics.
In the run-up to the recent elections, forces loyal to Mugabe waged a campaign of terror against supporters of his opponent, Morgan Tsvangirai.
After losing the election, Mugabe refused to step down.
Hunger and privation are ever present and growing realities.
The capital is essentially without safe water.
Soldiers whose pay has been suspended in the face of government insolvency have started rioting in the streets.

And the list goes on.

It is well past time for the international community to stand up.

A Domestic Entry for Criminal Justice Darwin Awards

2008-11-25T15:13:00.003-06:00

Granted, I am bending definitions at this point, but there are levels of stupidity that ought to result in one's elimination from the gene pool.

George Wills and Robert Catalano thought they had a great business plan (or so one assumes). After all, thousands of men were in positions where they were having to provide random U/A's and law enforcement has come quite a long way in detecting most of the commonly-used dodges. So Wills and Catalano founded Puck Technology, whose most touted product was the Whizzinator.

The Whizzinator is the ultimate solution for a drug testing device," says a statement on the website of the California-based company, which calls itself the "undisputed leader in synthetic urine."
"The prosthetic penis is very realistic and concealing is simple, while our quality production and materials assures you that the Whizzinator will let it flow again and again, anytime, anywhere you need it!"

Wills and Catalano just entered guilty pleas to federal criminal charges and will be sentenced in Pittsburgh in February. They face up to eight years in prison for each count.

So, reading the excerpt from the BBC story, who can spot the "stupid criminal trick"?

If people had common sense, trial lawyers everywhere would be out of work

2008-11-25T11:38:00.002-06:00

According to reporting by the BBC, a couple in Arkansas is suing McDonald's for emotional distress, embarrassment, and damage to their reputations.

What happened?

Well, apparently the husband left his cell phone at the restaurant, and the employees there did not keep it safe for him like they supposedly said they would. Photographs were downloaded from the phone and posted online along with contact information similarly gleaned from the phone. There was not indication in the reporting if the website in question was run by a McDonald's employee, ex-employee, or just some customer who grabbed the phone.

Now, acknowledging that it is often the case that there is more than meets the eye to most of the "outrageous" lawsuits that the media reports on (do we really need to discuss the hot coffee case again?), I do have to note that the exercise of a little common sense on the part of the plaintiffs could have prevented this entire brouhaha.

All the wife had to do was follow one simple maxim: "Do not send nude pictures of yourself to your husband's cell phone."

It's important to know the difference between can and should

2008-11-12T16:12:00.004-06:00

The fact that you can legislate something does not necessarily mean that you should.

Quite the contrary. The ability to promulgate rules and laws is as much a summons to caution as anything else.

Not that we ever heed that summons . . .

The European Union recently had to scrap a set of regulations it had put in place in efforts to ensure a common base of quality for produce throughout a Euro-zone. A laudable goal, but - as is often the wont of such things - the regulations got more detailed, by an order of magnitude or two, than was strictly necessary. Not only were taste, quality, and other issues actually relevant to food the subject of a detailed set of rules, but European produce had to meet certain size and shape standards, leading to 20% of produce in the Euro-zone failing to make it to market. Let's repeat that once for emphasis, shall we? Fruits and vegetables were failing to get to the grocery store because they were oddly shaped.

Thankfully, that bit of regulatory overexuberance is in the process of being curbed.

I got better

2008-11-10T12:46:00.004-06:00

One thing that I take a fair amount of grief over is my utter and unshakable belief in the power of redemption and the potential of rehabilitation. Frankly, I don't know that I could do my job if that weren't an article of faith with me. That being said, it is still lovely when I run across a story that demonstrates that my convictions in this regard are more than pie-in-the-sky optimism.

Whaddya know

2008-11-06T12:25:00.001-06:00

It's nice to know that my migraines just might come with some health advantage.

Things that make you go "WTF?"

2008-10-23T14:12:00.000-05:00

I just want to know how anyone manages to rack up $1 million worth of electricity bills.

I don't think my lifelong electrical usage would add up to that much.

Because nothing good comes without a downside

2008-10-23T11:02:00.002-05:00

Granted, as a criminal defense attorney I don't deal in what most movers and shakers would consider "sensitive" information, but I do deal regularly with confidential information, and I daily produce documents that contain privileged data.

So, this sort of thing is not going to leave me feeling all that comforted.

The attacks were dreamed up by doctoral students Martin Vuagnoux and Sylvain Pasini from the Security and Cryptography Laboratory at the Swiss Ecole Polytechnique Federale de Lausanne (EPFL).
The EPFL students tested 11 different keyboard models that connected to a computer via either a USB or a PS/2 socket. The attacks they developed also worked with keyboards embedded in laptops.
Every keyboard tested was vulnerable to at least one of the four attacks the researchers used.

No, I do not expect myself to be a target of industrial espionage or anything silly like that, but I will not be the least bit surprised if some of the bigger firms end up being on the receiving end of this sort of attack.

An International Entry for the Criminal Justice Darwin Awards

2008-10-22T16:21:00.002-05:00

Yeah, I know . . . to get a Darwin award one technically has to die, but I am exercising my editorial fiat over this space to declare that - for the awards I bestow here - one merely need end up in dutch (which does remove you from the breeding population for a while, theoretically) by attempting or carrying out a crime in a particularly stupid way.

So, with no further ado, I present the winner of my first Criminal Justice Darwin Award.

And I had to go international to find him.

A 22-year old man from Manchester decided to break into a grocery store by climbing in its chimney. Predictably, he got stuck, and later had to be removed by firefighters who turned the youngster over to the police, who toddled him off to the pokey . . .

. . . but not before taking him to the hospital for medical attention because, presumably in his struggles to free himself from the chimney, he had wiggled his way out of all of his clothes.

A reminder for those who would forget why the adversarial system exists in its current robust form

2008-10-21T11:49:00.002-05:00

I've always hated the phrase "he got off on a technicality."

The Constitution and its preservation is not a technicality.

Rather, it is the singular bulwark that stands between us and societies where injustice runs rampant.

It has, however, been so long since most of us have had to deal with the horror show that occurs when rights aren't respected and preserved that we let our guard down and start talking in terms of "well, if you haven't done anything, what do you have to worry about."

Indeed.

Hundreds of prisoners on Nigeria's death rows did not have a fair trial and may be innocent, rights group Amnesty International (AI) says.
AI says many confessions are extracted under torture and people are sentenced to death on that evidence alone.

If anyone ever complains about Miranda, remind them that this is why it exists. The third degree (the old euphemism for interrogations that essentially involved torture) and its common use was one of the primary impulses behind the ruling in Miranda, as any open-eyed canvas of the case amply demonstrates.

According to the 78-page report, almost 80% of inmates in Nigerian prisons say they have been beaten, threatened with weapons or tortured in police cells
It details how, after a prisoner has been hanged, other death row prisoners are forced to clean the gallows.
"The police are overstretched and under-resourced. Because of this, they rely heavily on confessions to 'solve' crimes - rather than on expensive investigations," Ms van Kregten said.

Of course, these abuses are only made worse when corruption runs rampant in the criminal enforcement structure.

"I am not an armed robber. I am a shoemaker. I bought a [motorcycle] from someone who stole it," death row inmate Jafar, 57, told Amnesty.
He filed an appeal 24 years ago, but he is still waiting for it to be heard as his case file has gone missing.
"The police asked me to be a witness. They got the man who sold [me] the [motorcycle] but shot him to death. After that, I became the suspect."
In the report, many prisoners said that when the police picked them up, they asked for money to release them.
Those who could not pay were treated as suspected armed robbers, they say.

This sort of thing is the reason why so many defense attorneys believe so fervently in the adversarial system, and why so very many of us live by the credo that it is better to release a guilty man than convict an innocent.

Only in Lawyer-Land

2008-10-20T20:28:00.002-05:00

I'm pretty sure I've mentioned this case before, but like all of the truly too surreal to be true and yet it is things from the realm of the law, it really is the gift that just keeps on giving.

LINCOLN, Neb. (AP) — A judge has thrown out a Nebraska legislator's lawsuit against God, saying the Almighty wasn't properly served due to his unlisted home address.

The beautiful thing is that isn't even the best part. This is:

Chambers, who graduated from law school but never took the bar exam, thinks he's found a hole in the judge's ruling.
"The court itself acknowledges the existence of God," Chambers said Wednesday. "A consequence of that acknowledgment is a recognition of God's omniscience."
Therefore, Chambers said, "Since God knows everything, God has notice of this lawsuit."

I think I'm going to be giggling about this one for the next week.

And now a little something to restore you faith in humanity

2008-10-09T20:32:00.000-05:00

A billion here, a billion there, pretty soon we're talking about real money

2008-10-09T07:43:00.003-05:00

Of late I have not been reading the papers with the same vigor that I used to.

There's a reason for that.

When I pay too close of attention to the news I run across things that make my head want to explode from the sheer painful irony.

For example, on the same day that the wires noted AIG is asking the federal government for more money, the BBC reports that the infamous debt clock in New York City has run out of zeroes .

Easily the most interesting thing I have seen today

2008-10-01T18:02:00.003-05:00

It never ceases to amaze me the tools that market researchers can use to determine the effectiveness of various advertising tools.

I swear, SNL is still around purely for the sake of election years

2008-09-28T13:54:00.000-05:00

It ain't like the conservative elites get it either

2008-09-10T18:07:00.002-05:00

So, ever since this morning I have been getting battered with news of Republican "outrage" over Senator Obama's comment that Senator McCain's policies were "putting lipstick on a pig."

"Smear!" they shout.

"He's a sexist!" they shout.

"He's talking about Governor Palin!" they shout.

Excuse my French, but that is a steaming pile of horse excrement.

Anyone who has regular contact with rural folks or blue collar folks or both knows that the colloquialism "You can put lipstick on a pig, but it's still a pig" has been used for decades - perhaps longer - to denote that someone is trying to sell you a bill of goods.

And I can say that from experience.

One of the realities of criminal defense is that most of your clients are on the lower end of the economic scale, and if you want to be good at your job, you need to be capable of speaking the language.

Maybe if the media elites on both sides of the aisle started spending more time with regular people instead of just talking about them and pretending to protect their interests we would be able to avoid this sort of nonsense.

Do I really have to hug you?

2008-09-04T18:14:00.002-05:00

Today, the media - both mainstream and alternative - simply could not talk about Governor Sarah Palin enough, and with all of that I haven't seen or heard a soul mention the thing that I found most striking . . . the body language between Senator McCain and Governor Palin when he came out after her speech.

Back when I was in high school, one of the local drama teachers used to kvetch at his students any time their characters had to hug as part of a performance. His ire was roused by the fact that the insincerity of the hug was blatantly obvious. A-frame hugs. That's what he used to call them. When two individuals know they have to hug, but their hearts aren't in it, and that ends up being reflected in the fact that they engage in as little physical contact in the hug as possible.

There have been reports that Senator McCain wanted to pick Senator Lieberman or former Governor Ridge to round out the ticket, but that - at the last minute - the Right Wing of the party forced Palin on him.

The A-frame hug after Governor Palin's speech indicates that this is plausible, if not probable.

Since when is it elitist to pull yourself up?

2008-08-25T18:53:00.008-05:00

There are a lot of things that bother me about the way that this election has been framed. Of all of them I think the one that disturbs me the most is the manner in which Senator Barack Obama and Michele Obama have been portrayed as rank elitists because they had the temerity to go to Harvard Law School.

Now, as a graduate of William & Mary, I will be the first to admit that my feelings toward HLS are less than warm and fuzzy, but that really isn't the point. At the end of the day, where the Obamas went to school isn't the point.

The point is where they had to climb up from.

Michele grew up on the South Side of Chicago in a blue collar family that scraped and struggled to make ends meet and that sacrificed to help put Michele in a position where she could pursue the sort of education that she would need to succeed.

Barack grew up the child of a single mother, who lived for years with his grandparents, and was really only able to go to the exclusive high school he went to thanks to scholarships.

And that, at the end of the day, is what makes me hate the elitist meme so very much.

I know all too well, from intimate personal experience exactly how hard it is to make that climb.

I am the child of a single mother. I grew up in poverty. I only got to go to good schools (twelve years of Catholic schooling) because my Mom sacrificed and I managed to score a couple of scholarships. I was always the charity case, and by every statistic, I should be sitting in a low skilled job right now, just making ends meet.

But Mom sacrificed, and I worked my butt off, and I got more than a little lucky.

And I was able to . . . eventually . . . go to a really good law school. (Even better, I graduated on a Mother's Day.)

Does that make me an elitist?

By the lights of some, yep, sure does.

More than a little ridiculous.

The fact that I found a way to climb from the working class into a loftier social strata doesn't make me an elitist any more than the much loftier heights the Obamas have scaled make them elitists.

It makes us Americans.

Could someone please explain to me WHY Robert Penn Warren isn't required reading in every school in the nation?

2008-08-09T20:10:00.003-05:00

It has been a very, very long time since I read someone's work and had so many moments where my heart lept and sang "yes, he gets it."

I can see what the law is like. It's like a single-bed blanket on a double bed and three folks in the bed on a cold night. There ain't ever enough blanket to cover the case, no matter how much pulling and hauling, and somebody is always going to nigh catch pneumonia. Hell, the law is like the pants you bought last year for a growing boy, but it is always this year and the seams are popped and the shankbones to the breeze. The law is always too short and too tight for growing humankind.

That is easily the best and most accurate description of the law I have ever read in my life, and a perfectly exquisite explanation of why I have always believed common law systems are superior to civil law systems.

If Robert Penn Warren's ghost is going to take up residence in my head, he could at least dust the place.

2008-08-09T19:11:00.004-05:00

Every so often, an author manages to sum up perfectly something that had been rustling around for a seeming eon, deep down in the marrow of my bones, just beyond the range of verbalization.

I ran across this tonight while reading All the King's Men:

There is nothing more along than being in a car at night in the rain. I was in the car. And I was glad of it. Between one point on the map and another point on the map, there was the being alone in the car in the rain. They say you are not you except in terms of relation to other people. If there weren't any other people there wouldn't be any you because what you do, which is what you are, only has meaning in relation to other people. That is a very comforting thought when you are in the car in the rain at night alone, for then you aren't you, and not being you or anything, you can really lie back and get some rest. It is a vacation from being you. There is only the flow of the motor under your foot spinning that frail thread of sound out of its metal gut like a spider, that filament, that nexus, which isn't really there, between the you which you have just left in one place and the you which you will be when you get to the other place.

If anyone ever wonders why I take great solace in the fact that my job forces me to do a ridiculous amount of driving . . . well, now you know.

2008-08-06T17:55:00.001-05:00

Paris Hilton Responds to McCain Adfunny videosFunnyOrDie.com

See more funny videos at Funny or Die

Eeeeeewww

2008-08-01T17:10:00.003-05:00

Every so often, a completely unrelated search will lead you to something deeply disturbing. For example, I ran across the following - pretty much at random - while trolling through one of my Wisconsin statute books:

951.025 Decompression prohibited. No person may kill an animal by means of decompression.

Now, I am not terribly distressed at the fact that I am barred from fatally decompressing my cat. Despite the sticker to the contrary that I used to have, I really do not have the hobby of microwaving cats for fun and profit. No, what makes my skin crawl is the understanding that this sort of legislation does not come into existence without law-makers believing it is necessary, usually because some idjit has done it. You don't get a necrophilia statute until someone tries to lay a corpse.

Combine that knowledge with the fact that this particular law was first enacted in 1985, right when the microwave oven was first becoming prevalent . . .

So a corpse is a person now?

2008-07-24T18:54:00.002-05:00

A couple of weeks back, Wisconsin leaped into the national news with yet another indelibly cheeseheadish "that one ain't quite right" moment of wackiness.

The last such moment sprang out of a proposal to add a new hunting season to the True North's dizzying array.

Some bird-watchers had grown rather upset because the mad proliferation of feral cats was having a deleterious impact on the state's songbird population. Not a frivolous concern to be sure, and one could scarcely blame them for attempting to find a solution to the same overpopulation problem that has distressed cat-lovers for years.

Had the bird-watchers proposed the logical solution and pushed for a catch-and-release, spay-and-neuter program for feral cats, they would have had nothing but enthusiastic support from felinophiles. But, instead of taking the path of logic, the amateur avian observers traipsed down the same path of quasi-lunacy that produced things like the House on the Rock or the National Fresh Water Fishing Hall of Fame and Museum . . . but not in an "isn't that adorably eccentric" way. The bird-watchers, in their inimitable wisdom, decided that what was needed was a law permitting the hunting of feral cats.

We are a great state, but we sometimes have difficulties with the connection between cause and effect.

But there are folks in this state who think lutefisk is a capital notion, so there you have it.

I just can't help fussing at the edges

2008-07-18T21:28:00.002-05:00

Earlier today, while I was listening to a discussion on NPR about the internet's impact on critical thinking, I heard an intriguing anecdote about Nietzsche. Apparently, as he aged, the philosopher's eyesight deteriorated to the point where he was having real difficulty with writing. So he purchased a typewriter. And a friend of his noted that his writing, and even his thinking, seemed to have changed. On being asked about it, Nietzsche said that he had noticed the same thing, and that it did not startle him all that much if the tool used had some impact on the final product.

Things that make you go "Hmmmmmm."

And so the experiment begins. For the next few days, possibly from here on out, I am going to write my blog posts longhand as the inspiration strikes me and then transcribe them as I have the opportunity and the laptop access. It will be interesting to see if there are any truly discernible alterations in my writing or my methods of perceiving and analyzing the world.

Refresher lesson in The Classics for Karl Rove

2008-07-10T20:02:00.003-05:00

The word subpoena is a combination of the Latin "sub" for under and the Latin "poena" for penalty. It is called a subpoena because the opening words of the old writ were "Sub poena."

Just sayin'.

Le Sigh

2008-07-10T18:43:00.001-05:00

I do believe I have been swept off of my feet by a crotchety ole Texas oil man.

Here's why.

Okay, it's not the whole solution, or even a major part of it, but to hear a fossil fuel magnate talk so enthusiastically about wind power (even if he does stand to earn a boodle from his "wind corridor") is incredibly heartening.

Who has happier cows again?

2008-07-01T06:24:00.002-05:00

According to a program I am currently listening to on Wisconsin Public Radio, the average Wisconsin dairy farmer has 80 cows.

In contrast, the average California dairy farmer has 800 cows.

Just a little food for thought for the next time you're in the dairy aisle.

Um, dude, I ain't no Dumbledore

2008-06-25T18:03:00.002-05:00

Sometimes . . . okay, more often than sometimes if I am to be perfectly honest . . . I am forced to conclude that my clients are utterly convinced that I am capable of performing Harry Potter-style magic or of pulling off miracles at the drop of a hat.

I don't want to have to plead to anything worse than a misdemeanor. And I want probation, but only a year, and I don't think I should have to spend a single day in jail.

Look, Ms. Attorney, I know I sold a couple of grams of cocaine to an undercover cop, and I know the D.A. has audio and video recordings of the whole transaction, and I know this would be my third felony conviction. But, none of that should matter. I want what I want, and you're going to get it for me or I am going to sit here and stamp my feet.

Well, I want a pony and $100 million and world peace.

:::sigh:::

The said thing is the sheer number of times I have had that conversation.

Making writer's block look like a head cold

2008-06-20T19:41:00.004-05:00

Not long ago, DBB commented that I must be terribly busy, since I have not posted much of anything since re-setting this blog. This is, of course, true in part, but it isn't the entire story.

I have found it incredibly difficult to blog as a working member of the Bar.

There are a few reasons for this. First, despite my persistent insistence on doing all that I can to preserve my anonymity, I am terribly worried about being "unmasked" and about having something written by me used to hurt the partners at my firm. Not because I am afraid of losing my job, but because I am blessed enough to have bosses I genuinely like as people, admire as professionals, and respect on both levels, and I really do not want to do anything to harm them.

Then there is the issue of the work itself. While I love what I do, it is a rough row to hoe. On most days, talking about my work in a frank manner would lead any casual observer to believe that I am utterly bitter and unhappy, when that is not the case. Criminal defense is just . . . well . . . most of the time it's like driving down a Wisconsin road at the very beginning of spring. Potholes, potholes, and more potholes. And an honest recapitulation of the challenges involved is difficult, at least it is if you don't want to create the impression that you are utterly miserable.

So, for the three people who read this site, please forgive me for my silence.

I am trying to write. I just have a few challenges to deal with in getting there.

On the off chance that there's someone in Timbuktu who hasn't seen this one. . .

2008-06-20T15:45:00.003-05:00

And, yes, I would find it just as deliciously funny if someone managed to put together something as gloriously snarky about the Democrats.

But those of you who know me already know that.

Mind you, I am so far from being psychic it isn't even funny . . .

2008-06-03T21:20:00.002-05:00

. . . but I am having one of those moments when my gut is telling me something . . . okay, not telling . . . screaming.

Senator Obama is going to ask Senator Clinton to join him on the Democratic ticket and she is going to say yes.

I cannot explain why I think that. Just tea leaves and between the lines here, and gods know I could be wrong.

But, gods know, I know to listen to my gut.

As it turns out, Trial Ad really would not have helped that much . . .

2008-06-03T19:57:00.003-05:00

So how many trials have you done so far?

What's your record like?

Those are the two questions that I probably hear the most frequently from people when they find out what sort of law I practice.

Yet another thing to lay at the feet of Law & Order, The Practice, and all of the rest.

Contrary to popular belief, criminal cases do not regularly go to trial. Quite the opposite, in fact. Well over 90% of cases settle without trial, and a majority settle without any motion practice. That's either a credit to prosecutorial thoroughness, a depressing commentary on the apathy and sloth of the defense bar, a manifestation of the rational decision-making of defendants, or a little bit of all three.

Whatever the source, the fact is that a criminal defense attorney can go months and months without going anywhere near a jury.

This, of course, is not to say that trial advocacy skills aren't important. They just don't see as much use as I would have presumed before I actually got out into practice. In my experience, more good is done for clients through negotiation skills than anything else.

Just one more thing to add to the very long "list of things they should have told me in law school, but didn't."

We don't need no stinkin' statehood . . .

2008-04-22T22:50:00.002-05:00

According to the information I am getting, folks in Puerto Rico tend to vote at around an 80% turnout rate. Now, I don't know if that is, in fact, true but it certainly holds the capacity, given that Puerto Rico's population is approximately 2 million, to really impact the face of the primaries.

And, it occurs to me, precisely how ironic that would be, given the longstanding issues and debates and acrimony regarding potential statehood circulating through the blood of that island.

Because they need to be kept honest

2008-04-22T20:53:00.003-05:00

Every so often . . . well, if I am to be perfectly honest, more than every so often . . . someone asks the inevitable question:

"Why do you do it? You're a good person, Armagh. How can you spend your life on the side of the criminals? How can you do things that might lead to someone who did something horrendous getting off of the hook?"

There are, of course, a million answers to that question, and in the coming weeks and months I hope to more fully explore some of them.

For the moment, however, I think it is enough to simply quote one of my favorite passages from one of the more significant SCOTUS Criminal Procedure cases:

There are those who say, as did Justice Cardozo, that under our constitutional exclusionary doctrine "the criminal is to go free because the constable has blundered." In some cases this will undoubtedly be the result." But, as was said in Elkins, "there is another consideration -- the imperative of judicial integrity." The criminal goes free, if he must, but it is the law that sets him free. Nothing can destroy a government more quickly than its failure to observe its own laws, or worse, its disregard of the charter of its own existence. As Mr. Justice Brandeis , dissenting, said in Olmstead v. United States: "Our Government is the potent, the omnipresent teacher. For good or for ill, it teaches the whole people by its example . . . If the Government becomes a lawbreaker, it breeds contempt for law; it invites every man to become a law unto himself; it invites anarchy."
--Mapp v. Ohio, 367 U.S. 643, 659 (1961), internal citations omitted.

Of course, every so often I run into a cop or a DA who gets this. Unfortunately, that tends to be the exception, rather than the rule.

Another sad realization

2008-04-15T19:15:00.001-05:00

I hate to be fatalistic, but some kids just do not have a chance.

In which I make a divergence in to the quasi-political . . .

2008-04-12T23:50:00.002-05:00

. . . and ask that someone, anyone, explain to me how de-funding RIF could be considered sensible, logical, or in any way in the same universe as a good idea.

Reset

2008-04-10T20:40:00.003-05:00

I've thought a lot lately about the purpose of this blog . . . about why I created it . . . about what I want it to become . . . and about whether I really want it to become anything.

At first, this was a place to practice my writing, via musings about politics, law, religion, and other assorted aspects of life, but there is something inherently unsatisfying about that, especially now. My existence is far to overwhelmed by my work for me to write about anything else, but blogging as an attorney poses some special risks in terms of professional reputation and the danger of inadvertently revealing more than one can within the standards of professional responsibility.

Still, the work and professional life of an attorney is a very unique thing, a phenomenon more different from the popular imagery than most people would even begin to guess, and more myths and misperceptions about the profession have evolved than I can even begin to count. This is perhaps uniquely true of the work of a criminal defense attorney. Whenever I talk to strangers, acquaintances, friends, and even my closest relatives, I am staggered by the extent to which their approach to me is now colored by some clouded understanding of exactly what it is I do and why I do it.

So, from here out, that will be the primary purpose of this blog. Granted, there will still be religious, political, and cultural musings, but they will cease being the headliner. That slot will now be devoted to an examination of life inside the profession. Nothing about specific cases; I'm not fool enough to tread within a mile of that line. But there are so many strange things that are common to the work . . . more than enough for years and years of blog posts.

Just wondering . . . .

2008-04-02T22:46:00.003-05:00

If we want peace so badly, so desperately and so consistently, why is it that we so very often effect our strategic goals at the point of a missile?

Friday Random Ten - The "I Am the Antithesis of a Music Snob" Edition

2008-02-29T22:14:00.004-06:00

Paul Van Dyk - Avenue
Bing Crosby & Al Jolson - Alexander's Ragtime Band
Everclear - Here We Go Again
Journey - Wheel in the Sky
Collective Soul - Breathe
The Cranberries - Yeat's Grave
Paul Van Dyk - We Are Alive
Fleetwood Mac - Dreams
Pat Benatar - Fire and Ice
Concrete Blonde - I Call It Love

This isn't to say, of course, that I have no appreciation for or understanding of the arguments made in favor of music snobbery. As a former Theatre Brat, I understand that every art form must have it's gate-keepers, and I am grateful that those monitors exist, as they help prevent art from becoming nothing but an endless parade of Brittany Spears and Jerry Bruckheimer.

That being said, I cannot bring myself to be a music snob.

For me, music is not an intellectual experience. Quite the contrary. It is pure emotion and childlike naïveté and carpe diem infused bliss.

So, I thank the music snobs for aiding in the creation of a more quality-based musical universe, but I cannot join their ranks.

I simply haven't the discipline.

1,001 words . . . .

2008-02-28T22:58:00.001-06:00

Si, se puede!

2008-02-22T23:47:00.001-06:00

Pretty stark contrast, eh?

Friday Random Ten - The Inaugural Edition

2008-02-22T20:39:00.002-06:00

Never one to pass up a good trend, and in honor of my finally having joined the rest of the 21st century via the very belated acquisition of an iPod nano, I bring you the inaugural edition of this blog's Friday Random Ten:

Heart - White Lightning & Wine
Sinead O'Connor - Black Boys on Mopeds
Everclear - Wonderful
Violent Femmes - Out of The Window
Fleetwood Mac - Tusk
Sisters of Mercy - Temple of Love
The Cranberries - Empty
Depeche Mode - Rush
The Bravery - Give In
Beth Hart - L.A. Song

Question of the day

2008-02-22T19:40:00.001-06:00

"If a fly falls in the Holy Water is the Holy Water contaminated or the fly sacred?"
----a philosophy professor in Texas