I have discovered the good side of heartbreak: those pants I got for Christmas that didn't quite fit now button.  The extra chub that had developed in the abs above my belly button is gone.  Emotional turmoil be damned; I'm stoked to have lost 7 pounds and am hoping for 5 more at least. 

I am just the weirdest mix of negativity always overcome by eternal optimism.  Maybe that's what makes me well-suited for criminal defense work.  I don't mind wallowing in the darkness but I can always see the possibility in any situation or person.

Signs your life has gone completely off the rails: when a Kelly Clarkson song describes it perfectly. Hell, I even have hazel eyes.


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I thought March was supposed to go out like a lamb. Well, in my world, March is going out like a mean-ass ninja with a grudge, kicking me in the teeth, punching me in the gut, and generally leaving my life in ruins. I do not like this March one bit.

They say I'll get through this, that people can get through anything. Intellectually, I know this is true. But from where I'm standing it's impossible to see a way out right now. This is definitely not where my 21 year-old self thought I would be in 2010. It's not where my Dec 09 self thought I'd be.

March 2010 will forever be rembered as the suckiest month ever.


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Sometimes you find a news story that just leaves you speechless.  Like this one.  How can a young man who was raised in San Diego by his U.S. citizen father possibly be in this country illegally?  Sadly, Ruben Flores-Villar learned the hard way that a child born to a 16 year-old father prior to 1986 is not automatically a U.S. citizen.  Had his mother been a 16 year-old U.S. citizen, he would have been a citizen.  But his dad had to get a court order establishing paternity.  Now he's litigating that disparity, presumably arguing an equal protection violation.  

I'd guess his father didn't know that his own son wasn't a citizen, either, or he would have done something about it.  What 16 year-old faced with trying to raise an infant son as a single parent would have thought he had to do something to establish his own son's citizenship?  At 22, Ruben was convicted of a drug offense.  Because he wasn't a U.S. citizen, he was deported, apparently to a country he hadn't lived in since he was a baby.  But he came back (perhaps because it's where he's always lived with his family of U.S. citizens) and now he's facing charges of being in the country illegally.

The idea that this guy is a criminal who should be kicked out of the country he was raised in is deeply offensive to me.  He didn't do anything wrong (other than the marijuana offense).  (Fine, he was deported and wasn't supposed to come back, but good lord, this country is his frickin' home.)  His dad didn't jump through the right hoop, a hoop he wouldn't have had to jump through had he been a woman or 3 years older.  This guy should never have been deported in the first place and I refuse to fault him for coming back to the country he always believed was his.

Something's pretty amiss if this is the guy our immigration authorities are expending resources on.

A cautionary tale

Everyone always wants longer prison sentences.  Every crime problem in the country can be solved by putting people behind bars longer.  No politician ever won election by being "soft on crime", aka advocating probation and rehabilitation as preferable to incarceration.

But see where that gets you?  California as a state is in crisis mode.  It's a financial disaster prompting the interesting question of whether a state can declare bankruptcy.  One of the major, identifiable contributors to California's cash flow problems is its massive prison overcrowding.  The prison budget is about 11% of California's overall budget, a pretty hefty chunk (more than higher education).  At its high point, the prison population was estimated at 180% capacity.  That's not good.  The article has a few pictures that show what kind of living conditions such overcrowding leads to.  At least one federal judge has ordered California to reduce its prison population to comply with the 8th Amendment prohibition against cruel and unusual punishment.

For many people, the natural reaction is to think, "Oh, boo hoo for the poor criminals.  Prison shouldn't be cushy.  Don't do the crime if you can't do the time."  Unfortunately, too many people aren't interested in pushing past that initial reaction to think more sensibly about crime and punishment policy.  If that's you, then I've got news for you: you are part of the problem.  Because this kind of prison overcrowding leads to spiraling costs which leads to cutting of education, vocational training, and counseling programs in prisons which leads to greater recidivism upon release.  California has the highest recidivism rate in the country at 70%.  In short, by focusing only on long prison sentences to the exclusion of all other sentencing options out there, we're screwing ourselves.

Because California dragged its heels so much about addressing its overcrowding problem, they are now put in the impossible position of having to release thousands of inmates and having to decide which of those won't be supervised at all on release.  Hardly an ideal situation.  But it does at least provide evidence for my long-held contention that long prison sentences as a response to any and all crimes is actually contrary to our best interests.  Pouring money into simply warehousing people doesn't do us any good.  Here's hoping California's forced experimentation with alternatives to incarceration and parole supervision strategies will ultimately yield some good ideas.  It's probably overly-optimistic of me to think maybe our bad economy will finally force us to pursue more sensible crime policy.  But California has no other choice.  Maybe other states can learn something and fix policies before they reach the brink of bankruptcy.

Heartbreak Town

This song by the Dixie Chicks came on my iPod this morning. The title so perfectly describes Larryville these last two days. I've been moping around like my dog died. (She hasn't. She's fine, happy, and unaffected by our communal tragedy.)

I know it's just a basketball game, but around here, it's so much more than just a game. Perhaps I will be ready to resume regular life (including blogging) today.

The good news is my house got some hard-core cleaning/organizing yesterday. I rather hope the mopes will stick around long enough for me to get my bedroom closet thoroughly under control. Oh, and I think I'm going with a shade of amethyst for the entryway and a pale green for the stairs. Now, has anyone got any good ideas for how I can use 10 sample paint cans?

It's that time of year

Can you feel it?  The anticipation?  The energy?  The excitement?  All ready to burst into exhilaration at the drop of an orange ball through a white net.  That's right.  The Madness is here.  March Madness.  And when you live in the birthplace of college basketball, it's just a little madder.  (The inventor of the game coached here and is buried here.  And those other grand old tradition schools play in buildings named after guys who learned at the feet of the guy our building is named after (on the street named after the inventor), so yeah, we are the birthplace of college basketball.)

When the Madness sets in, attempting to work is futile.  Thinking about the law is just a temporary distraction from what really matters.  Instead, time is spent on message boards.  But not just Rockchalk or Phog.net.  No, one must also read the Kentucky boards and the Duke boards and the Syracuse boards.  The truly Mad feel compelled to know just what other fans think of their teams' chances.

And then there are the Youtube videos.  Already, my fellow Hawk fans have begun sharing their favorite highlight videos on Facebook and in e-mails.  This one is a particular favorite.  In the days before the 2008 tournament, it was this one.  (Subsequently updated to look like this.)

At home, when I'm not watching pre-tournament coverage on the ESPN family of networks, I'm watching my DVDs of the 1988 Championship won by Danny and the Miracles.  (Ask me about the time I had dinner with Danny Manning!)  Or I'm reliving the way then-freshman Cole Aldrich dominated player of the year Tyler Hansbrough in the 2008 semi-finals.  And I go to bed each night watching the 2008 National Championship.

If I were actually to pick paint colors for my entryway right now, they would clearly be crimson and blue.  And every friend who came over to see it in the next 3 weeks would think it was a brilliant choice.  (Ooh, and I should put hardwood floors in there and paint a giant Jayhawk on it!)

Oh, yes.  The Madness has got me, down to the very core of my being.  I cannot fight the Madness.  Can you? 

Rock Chalk!

In which I appeal to you, dear readers, for your kind assistance. With a paint problem.

People of the internets, I am lost and I need your help.  In the past, I have had a perfect sense of paint colors.  When I bought my house, I, with relative ease, selected 5 colors for the 5 rooms I wanted to paint.  I did not try any of the colors to make sure I liked them.  I simply painted the rooms (all in one day thanks to lovely friends who will do anything for free pizza and beer) and loved all of the results.  I love the sage green of my living room, the mintier green of my bedroom, the red of my library, the purple of my guest room, and the latte color of my bathroom. 

For the exterior of my house, I settled on a beautiful red after really only testing out a few palettes on the paint visualizer.  The painter offered to do a test patch in case I hated it, but I was sure, so I told him to just do it.  And I was right.  Neighbors have asked to copy my exact color palette, it is that fabulous.  And as you might recall, I got to choose a paint color for my office this winter.  Again, I selected a color fairly quickly and have been thrilled with the result.  I had good reason to think selecting paint colors was something I was good at.

But now I have found my paint Waterloo.  I simply cannot find the right color for the "transition" spaces in my house.  The staircase.  The front entryway.  The weird little spot between the entryway and the living room.  Old houses like mine have very clearly defined spaces, which leaves nooks like these.  Currently, the entryway and weird little spot are a tan color that I just hate.  (SO thinks it's great, but I don't care.  I hate it.)  The stairs are a pale yellow, of which I am also not a fan.

Behr paint (who has not paid me, but I will always stick with because it's high quality paint) now sells little sample sizes.  So I started with two little jars of green paint: Spring Hill and Laurel Mist.  They are both slightly lighter than the Sagey of my living room, so I thought they would be a nice compliment.  I painted a swatch of each in the three areas to see which I liked better.  But after staring at them for two days, I decided I hated them both.  I went back to the website to come up with other ideas.  I decided to try a rich cream color, so I went with Eggnog.  But then I also thought a sophisticated gray could be nice, so I sampled Sage Grey.  They were both worse than the greens and now I had 4 odd paint patches on various walls throughout my house!  This week, I went back to get two more samples, resolving that these would be the last.  One of these two would definitely work.  I selected Hemlock Bud, a much lighter, almost white, green, and Road Runner, another gray.  Well, Hemlock Bud doesn't look much different from Eggnog and Road Runner looks almost pink.

After 6 samples, $20+, and 18 patches on my walls, I am no closer to selecting a paint color than I was when I started.  And it turns out that there is something I hate more than that brown in the entryway: that brown with 6 different color splotches on it!  I'm about ready to just go get two gallons of the craziest orange I can find and be done with it.  I have to cut myself off from my sample addiction.  I think perhaps I am simply not a neutral person and need to stop trying to find a neutral transition color.  Or perhaps I've just gotten so in my head that I can't see what I like anymore.

And so I turn to you, my brilliant, creative readers.  One of you must have an idea, a color direction I haven't thought of yet.  Someone, please, just tell me what color to paint these spaces.  I think there might have to be a prize for the person who helps me find my way out of my paint forest.

To laptop or not to laptop

When I was in law school, bringing laptops into class was all the rage.  This was quite a switch from my college years, 3 years before.  Back in college, only about half of my friends even had computers.  The rest of us just used the college's desk tops located in various labs throughout campus.  (In my first year of college, I actually typed a few papers out on a typewriter...)  But for law school, we were required to have computers. 

For the first year, I think I was the only student who didn't have a laptop.  They would all bring their laptops to every class so they could take their notes on them.  Many students seemed bent on typing out every word the professor said.  I stuck with my trusty narrow-ruled, 5 subject spiral notebooks and fine point Pilot pens.  But then my grandparents gave me the money to buy a laptop for my birthday during my 1L summer.  I think everyone expected me to make the switch to using my laptop in class when second year began.  But I always thought I took better notes and got more out of class when I took my notes by hand.  I had to bring my laptop to Evidence class because the textbook for that class was electronic, but even in that class,  I took my notes by hand.  I felt like I listened better because I couldn't type out every word as it was said but instead had to synthesize the points into shorter, coherent notes.  I also always have thought there was something about actually forming the letters by hand that helped the thoughts find a more permanent spot in my brain.

This was back in the days before wireless was prevalent.  Instead, the law school was wired so that every desk in the lecture rooms had data ports.  Students would just plug their computers into the law school network and have access to the internet.  Or they would play solitaire.  I know a lot of people used their laptops in a way that enhanced their class experience.  But a lot of people let their laptops distract them.  And this was all before the days of facebook, youtube, and gmail chat.

So it brought back a lot of law school thoughts to see this story about law professors banishing laptops from their classrooms to keep students from gaming and twittering during class.  I think I'm a little torn on this.  Law school is generally graded on a curve, so as a student, I might not have wanted the professor interfering with students who weren't paying attention.  If the guy behind me wants to play Farmville all class, well that's his choice and I'm perfectly ok with our grades reflecting our level of interest in the class discussion.  I would guess that Farmville guy would generally not do as well on the final as someone who paid attention.  On the other hand, most law school classes involve the professors calling on students.  (At my school, it was generally not out of the blue, though.  We usually knew which class periods we would be "up.")  As a student, I always found it pretty frustrating when the professor wasted time calling on a student who wasn't paying attention and hadn't kept up with the discussion.  And I can certainly understand the frustration a professor would feel trying to lecture to a room full of students staring at their computer screens.

I am sure there are some law students who are freaking out over being forced to leave their laptops off.  I had one friend in law school who was always so nervous and so stressed out, we used to joke she was going to give herself a stroke.  But it wasn't really much of a joke because I really did worry she was at least giving herself an ulcer.  That girl used to stay up until 2 every night studying.  She never gave herself a night off.  Even if she'd already read the material, she would re-read it or review her old notes or do something.  If she had been told she could not have her laptop in class, she would have gone round the bend.  She was definitely one of the "type every word the professor says" kind.  But then again, maybe she would have been better off in a laptop-free classroom because maybe she could have really enjoyed the classroom experience once she got over her obsession with taking down every word.  Or maybe she would have just given herself hand cramps by writing as furiously as she could.

What do you think, former and current law students?  Would you feel lost if your professor banished laptops from her classroom?  Would you secretly think it was a good thing to have the distractions taken away?  Or would you just take notes by hand but hide your iphone in your lap, with Facebook mobile open?

Good riddance, winter!

What has four paws, two floppy ears, and is the happiest creature on earth?

This girl!

After a long, unusually cold and snowy winter of captivity, the poor little Mad Dog has finally gotten good walks for several days in a row.  It started on Tuesday with a post-work walk when the temperature was still above 40 when I got home.  The professor who lives down the alley sympathized when he saw her pulling me.  He, too, was enjoying that first day when the air just doesn't have that same chill to it.  Then yesterday afternoon was just glorious.  60 degrees.  Sunny.  No chilly wind.  It was that first hint of spring kind of day that has you looking longingly out the window all afternoon.  I caved and left work a bit early (it was Friday, after all) and took the happy pup for her longest walk since last fall.  She was so excited, she didn't even remember to stop and sniff every blade of grass.  She just wanted to walk.  I had forgotten just how many people comment on her cuteness when we do walk downtown.

Then this morning was the first "sweatshirt" Saturday.  (You know, those days when the only outer layer you really need is a sweatshirt.)  So we took her for a walk to get coffee.  Then SO had an errand to run.  Maddie had no objection to extending her outing.  She still managed to sprint the final half-block.

It may still technically be winter according to the calendar, but as far as this dog and I are concerned, spring has sprung!  After this ridiculously snowy, cold winter, all we can say is, "Hallelujiah!"

How not to conduct a line-up

A police officer in Charlotte, N.C. has resigned in protest over the prosecutor's office dismissing a large number of his cases.  (Well, in protest and in recognition of the fact that he was surely going to be fired anyway.)  The dispute began when a robbery victim reported Off. Brian Cloninger tried to influence her identification of a suspect in a line-up.  On the night of the mugging, the officer listened to the victim's description of the incident and became convinced he knew who committed the attack.  He urged the victim to look at the picture and commit it to memory over the course of the next few days so she would be able to pick him out of a line-up.  He even called her at 11 p.m. several days later to make sure she had been following his instructions.

The officer did not count on one thing when trying to coach this particular witness: she was a lawyer and could recognize misconduct when she saw it.  So she informed the prosecutor of what the officer had done.  (It did take her 6 months and she only reported it after going through the line-up and getting the suspect arrested, but she did come through in the end.)  With the only evidence being the irreparably-tainted eyewitness identification, the case had to be dismissed.

For his part, Cloninger seems committed to the idea that he did nothing wrong.  He was just trying to get the bad guy and, according to the prosecutor, Cloninger maintains he wouldn't do anything differently if he had it to do over again.  For her part, the victim is confident that the man Cloninger picked out is her attacker.  She was sure when she saw him in court.  But that only emphasizes the problem of suggestive identification procedures.  Once the officer showed her that picture and convinced her that was the guy, her memory would see him as her attacker.  It's frankly worthless that 6 months later when she saw the man in court, she recognized his voice and his walk.  The research is quite clear that an eyewitness' certainty has no bearing on her accuracy.  By the time she saw the man in court, her subconscious would only be looking to confirm the identification.  Fortunately, the prosecutors understood the deep flaw in Cloninger's actions and have opened up an extensive review of his case work. 

Over the past decade or more, we have learned a lot about the best ways to deal with eyewitness identifications.  We know that showing them multiple photos is less suggestive than showing them just one.  We know that showing them one at a time instead of in a six-pack is preferable because our natural tendency is to compare and pick the best match when looking at multiples.  When a witness looks at just one photo at a time, though, the witness is picking or rejecting each photo on its own merits.  We know that the officer conducting the line-up should be unaware of who the suspect is so the officer cannot subconsciously lead the witness to pick the suspect out. 

Yet, there are too many in the law enforcement world who resist implementing these changes.  As a result, they are making it less likely that the actual perpetrators of crimes will be caught.  Those officers who would cut through proper procedures to "get the bad guy" do a disservice to their stated goal.  They may well get the wrong guy or no guy at all.  Remember for every wrongful conviction obtained through misconduct or mistaken eyewitness identifications, there is a bad guy who was never caught.  By his tactics, Cloninger single-handedly guaranteed that no one will ever be convicted for the robbery he investigated.  The victim who reported his misconduct will get no sense of security in knowing that the man who put a gun in her face is behind bars.  My hope for the Charlotte-Mecklenburg police force is that they use this incident as an opening to re-training their officers in these best methods and put these methods in action so they avoid another Cloninger incident.

Shaken

Stories like this totally freak me out.  Earthquakes don't just devastate the affected region; they alter time.  The earth's rotation may have shifted enough to shorten our days after the earthquake in Chile.  By an imperceptible amount, but still, it's freaky. 

I don't understand much about geology, physics, astronomy, and where those sciences all converge.  But I always thought it was supposed to be bad for the earth to get knocked off its rotation.  Evidently, the NASA scientists don't seem unnerved by news that a large earthquake can literally shake the planet off its axis.  So I guess I don't need to worry about it, either.

You have the right to remain silent ... but only if you speak up

Sometimes I feel like all rationality has gone out the window when it comes to the intricate details of the Supreme Court's jurisprudence.  In this past week, the case law surrounding those infamous Miranda warnings have gotten quite a workout in two decisions issued last week and an oral argument heard today.  Today's arguments was one of those that had me wondering whether we've gotten so caught up in minutiae that we're missing out on the big picture.  (Transcript here.)

The question in today's argument focused on whether a defendant has to affirmatively invoke or waive his right to remain silent.  In this particular case, the defendant said basically nothing for upwards of 2 hours and 15 minutes.  This left the court to wonder whether the defendant had actively invoked his right to remain silent by remaining silent.

Justice Scalia pondered, "Why shouldn't we have a rule which simply says if you don't want to be interrogated, all you have to say is 'I don't want to answer your questions'?"  Later, he restated this point, "Why don't we have just a clear rule: You are read your rights; if you don't want to be questioned all you have to say is 'I don't want to be questioned.'"

Well, let me propose an alternate, and equally simple, rule.  How about the police can't ask a suspect any substantive questions unless and until the suspect affirmatively says, "I will waive my 5th Amendment rights."  No obligation on the suspect to say anything at all.  And if a suspect remains silent, there you go.  Right not waived.  Justice Kennedy got it.  He suggested we have to guide the police so, "Why don't we tell the police, there must be a waiver before you can continue to interrogate?"  See how clear and simple that would be?  The response by the U.S. attorney was all about what a burden that would put on law enforcement.  (As in how will we get convictions if we can't badger suspects into giving confessions?)

Too many of this nation's judges, including several justices on the supreme court, are more concerned with police convenience when fashioning the rules surrounding our constitutional rights.  It would make police work too difficult if they had to refrain from interrogating suspects who refuse to talk, so we need to fashion rules that focus on the needs of police to get information out of suspects.  What they should be concerned with is giving full force and effect to each individual defendant's individual right against being coerced into incriminating him or herself.

Doesn't it seem a bit much to suggest that we can't read anything into it when a suspect remains silent after being told he has the right to remain silent?  Sure, it's a bit simple, a bit on the nose.  But considering that we tell every person subjected to custodial interrogation that they have the right to remain silent, it feels disingenuous to respond to silence as if it's ambiguous.

Justice Scalia's proposed rule would require the suspect to engage in a dialogue to invoke his right not to engage in a dialogue.  Seems a little backwards to me.

Finally, towards the very end of the argument, when the state's attorney was back up for rebuttal, Justice Stevens offered this brilliant tidbit, "So the question  is...did he indicate in any way that he wished to remain silent?  And until the 2 hours and a half later when he did answer the three questions, that's pretty -- it's at least arguable that his silence indicated he wished to remain silent."

Hmm, now there's an idea.  According to those Miranda rights we've all heard on t.v. so many times, a defendant has the right to remain silent.  So the simple rule would be that a defendant who remains silent in the face of questioning has,  in fact, invoked that right to remain silent.  But that's way too simple.