DADT on its death bed?

So one hurdle is down for "Don't ask, don't tell".  Repeal of that pernicious policy has now passed the U.S. House of Representatives.  Whoo-hoo!  I did e-mail my Representative, Dennis Moore, about it, but he is the only Democrat in the Kansas Congressional delegation, so I wasn't terribly concerned about his vote.  I assumed he would be on the right side of history.

And now the battle turns to the Senate.  Sadly, I have no hope that either of my Senators will follow the example of Mr. Moore.  In the past few days, I have e-mailed both of them, urging them to fall on the side opposing discrimination.  Sen. Sam Brownback, who hopes to be my governor soon, is "hesitant to change a policy with such enormous implications for all parts of military life, especially during wartime."  I would prefer my Senator would be hesitant to continue a policy of blatant discrimination, but I didn't vote for this guy, anyway.  My other Senator, Pat Roberts, is also opposed to a change in the policy.  He considers his "commitment to ensure the best fighting force for our nation" to be his top priority.  Again, I would prefer a Senator who considered equal protection under the law to be his top priority, but I didn't vote for this guy, either.

Folks, "don't ask don't tell" is discrimination.  That's all it is.  And those who support it are in favor of discrimination.  Any excuses for studying a change or continuing the current policy or taking our time are red herrings.  There is simply no rational justification for excluding gays from military service.  Don't even bother trying to convince me otherwise because it will only serve to make me think less of you.  Any justification anyone suggests is crap.

I am ashamed to be represented by two Senators who stand on the side of discrimination.  I can only hope that my bigoted representatives will be in the minority.  We as a nation need to be better than this.  We as a nation need to say no longer will we tolerate a policy that forces people to lie in order to defend their country.

In the category of "I didn't realize we still did this"

In case you had forgotten, or were never aware, the FDA still enforces a ban on gay men donating blood in this country.  It's an HIV thing.  The rule was implemented in 1983, back when we didn't know much about HIV/AIDS except that it was really deadly, really painful, and most prevalent in gay men.  We also didn't know much about testing for it or how to prevent passing the virus on.  We also knew the horror stories of hemophiliacs contracting the virus through the blood transfusions they regularly relied on.  So 26 years ago, dealing with an emerging medical mystery that scared the living daylights out of most people, this rule didn't seem so outrageous back then.

But it's 2010.  We know a whole heck of a lot more about HIV than we did then.  We know it's not just a gay disease.  We know much more about viral loads and the likelihood of transmission through various activities.  Our testing capability has advanced tremendously.  So it seems like it's past time to reconsider the ban, which is why 18 senators asked the FDA to change the policy.  In June, then, the Federal Advisory Committee on Blood Safety and Availability will hold public meetings on the topic.  Now seems to be the time for re-thinking archaic treatment of gays.

This really is a ban that is both over-inclusive and under-inclusive.  The ban makes no exception for monogamous gay men who have been tested for diseases.  But the ban doesn't include African-American woman, who are at higher risk for HIV infection than most other demographic groups.  (Of course no one would propose such a ban because it's so offensive on its face.)  Blood donors already have to affirm they have not engaged in a variety of high risk behaviors for the past year, like no sex with a prostitute, no tattoos, and no needle use.  Given that blood donors are already asked so many intrusive questions, it seems that a categorical ban on one demographic misses the mark at providing our blood banks with the largest quantity of safe blood they can get.  And if we just used questions to rule out individual gay blood donors who have engaged in high-risk behavior, as we do with every other demographic of blood donor besides gay men, we'll stop treating gay men like they're just one big bunch of dirty, diseased whores.  Seems like a win-win to me.

Another bad idea re: sex offenders

I hate to seem unsympathetic to the parents of murdered children, but I guess I am.  Not every child's murder needs to be turned into a crusade to create yet another pointless, ill-considered law targeting sex offenders.  This man's daughter was raped and murdered and that is a tragedy.  So now he is supporting legislation to require that registered sex offenders are so labeled on their driver's licenses.  I understand the impulse he feels to find some crusade to make sense of his daughter's senseless death.  But we really don't need more pointless laws that make us feel like we're being really tough on all those darn sex offenders even though the law would have no practical benefit.  (Well, other than branding people.)

This man's daughter wouldn't be alive if her killer had been marked as a sex offender on his driver's license.  I'm not clear at all what the purpose is or what the proponents hope to accomplish with this legislation.  I really don't see how this proposal would make any of us safer.  All it will do is further separate us from them.  It's one more way to make their lives outside of prison too difficult, one more way to make sure they won't be able to successfully reintegrate into society and live productive lives.  Every time any sex offender in California needs to show ID to complete a check or credit card purchase, the cashier will look at her customer with just a little more scorn after seeing the mark.  How many other times and places do we have to show a driver's license?  So all the sex offenders in California will get those looks from all sorts of random strangers in all sorts of regular, daily interactions.  Yep, that is definitely a recipe for rehabilitation and definitely will make us all safer.

Personally, I think anytime some new crime related legislation is being pushed by the grieving family of a victim, we ought to assume the proposal is not a good or necessary idea.  I don't think criminal laws should be driven by the passions of grief-stricken parents.  Grief and good public policy aren't the best bedfellows. 

Having grown up in Kansas, I've been aware of Fred Phelps and his Westboro Baptist Cult longer than most.  He has long been well known for his nuttiness around Topeka.  He had running feuds with a couple of local folks, like city council members.  Rumor had it the WBC would target specific individuals and fax them repeatedly, excoriating them for being "fags" and "fag lovers".*  His picketing campaign started just around Topeka.  And then it grew.  I remember cringing the first time I realized he got national attention.  Back in the early '90s, he was featured on an episode of Donahue and I groaned, thinking my new state would think these people represented my home state.

When I was in law school, he came to picket the University of Wisconsin.  Those of us who had grown up in Kansas did our best to encourage people just to ignore them.  We knew that publicity is exactly what they want and nothing thrills them more than a big counter-protest that will undoubtedly attract the media.  Of course, god love 'em, those uber-liberal Madison students couldn't ignore all that hate.  So they held a big rally and made the evening news.

Then the funeral picketing started in earnest.  They still picket lots of other places.  I saw them just today on the corner by one of our high schools.  Because nothing screams "America is doomed for being too pro-gay" more than a Sunday afternoon high school commencement.  But they're best known around the country for picketing at the funerals of soldiers, with signs from "God Hates Fags" to "Thank God for IEDs" to "God Blew Up the Space Shuttle".  (I really don't get their fascination with the space shuttle.)  In response, many states have passed laws restricting funeral protests to some distance away from the funeral site.  The family has always been careful to comply with those laws, even while disagreeing with them.

And then the father of one dead soldier sued. He sued claiming things like defamation and intentional infliction of emotional distress.  It's important to note that the WBC group was in full compliance with Maryland's funeral protest restrictions and that the soldier's family did not see any of the protest until they got home and saw television coverage.  A Maryland jury awarded the father millions of dollars, but the 4th Circuit Court of Appeals reversed, citing that darn, pesky First Amendment.  The Court further ordered the plaintiff to pay the church's attorneys' fees.  Now the United States Supreme Court has taken the case.

Which gets me to the point of this post.  The Kansas Attorney General has written a brief he intends to file in support of the Maryland father.  He has distributed his brief and is asking other states to sign on.  He's doing all of this using my tax dollars.  As part of his public announcement about this brief, the AG actually said, "These people have been hiding behind the Constitution long enough."

I should be used to this sort of unprincipled grand-standing from politicians, but I expected more from this particular AG.  He went to my college.  (I think we are the only two lawyers from that college in this state.)  I really would have expected him to side with the First Amendment.  I would have expected him to understand that those who express highly unpopular political and religious messages are absolutely entitled to "hide" behind the First Amendment.  Those unpopular messages are the reason we have a First Amendment, after all.  No one tries to censor the nice, popular stuff.

Look, I dislike the WBC's message as much as anyone.  (I won't say I hate the group because they spread enough hate and I don't want to contribute.)  I don't understand their single-minded focus on homosexuality as the "sin" that will lead to the destruction of America.  I certainly have no interest in meeting their god as he sounds like a pretty awful guy.  I don't know what made them think of soldiers' funerals as the place to picket, but they were right about what publicity it would generate.

But the bottom line is this: much as I dislike their message, I dislike even more the idea of using the court system to silence them.  And that's what this lawsuit is about.  It's about using a federal court as a means to bankrupt them so they can't travel.  It's about using a big judgment, enforceable by a federal court and law enforcement agencies, to make them think again about their political protests.  It's about stopping their protests.  But misguided and bizarre as their protests are, they are political protests.  None of us should be ok with using the court system to stop peaceful political protests.  (If you've never personally encountered a WBC protest, they really are peaceful.  They just stand there holding their hateful signs.)  I am extremely disappointed that the lawyer for my state has taken the wrong side in this fight.

The price of freedom is we have to put up with people like the WBC clan having that same freedom.  In discussing this over the past week, several people have said to me that freedom of speech comes with responsibility.  They are trying to suggest that the church should be held responsible for the emotional harms their actions cause.  I disagree with that interpretation.  I would suggest that the responsibility that comes with freedom of speech is the responsibility we all have to make sure that even the most vile, repugnant, hated political speech can be expressed.














*Of course I hate that word, but I'm not much for using asterisks.  I'd rather just quote him verbatim. 

Take that, Chicken Little

Every time defenders like me go to the courts and argue that some procedural short-cut set out by statute runs afoul of defendants' constitutional rights, the state invariably responds that the extra procedures we're asking for would sink the criminal justice system.  That was the refrain when we argued that forensic lab analysts should actually have to testify in court.  States had been getting by with just introducing the lab results in court, which defense-types thought was not quite in keeping with the Confrontation Clause.  The states pitched a fit and warned us all the system would crumble or grind to a halt or [insert catastrophic hyperbole here].  And yet the U.S. Supreme Court ruled almost a year ago that those analysts really did have to testify and the world has not fallen apart. 

Similarly, the Kansas Supreme Court ruled almost two years ago that juveniles in this state are entitled to a jury trial.  Based on the phrasing in our state constitution and the nature of our juvenile justice system, our court found that the Kansas Constitution's provision that the right to a jury trial is "inviolate" does apply to juveniles.  According to this article published in today's Topeka paper, the Kansas criminal justice system has not crumbled under the tremendous weight of respecting the rights of juvenile defendants.  Nobody can point to any serious issues anywhere in the state as a result of the Court's crazy decision that juvenile defendants are defendants, too.  And once again we learn that there won't actually be dire consequences if we just follow the darn (state or federal) constitution. 

From the perspective of an atheist, female practitioner who attended a Big 10 school and represents indigent defendants

Whenever there is an opening on the Supreme Court, a debate rages (well, ok, maybe not rages) about what the next Justice should look like.  Should it be a man or a woman?  Black, Asian, Latino/a?  Protestant ,, Jewish, or atheist?  From some law school other than Harvard or Yale?  And this discussion inevitably prompts the ludicrous response that the next Justice should be the best candidate available.  Which I want to say is the dumbest response possible, but to be nice, I'll just say it's the most naive, simple-minded response possible.

There is no best candidate available.  For most jobs out there, there is no best candidate available.  There are always several applicants who could do the job well, so choices are often made on some factor beyond sheer skill for the job.  That's even truer for this particular job.  It's not like the president can look through the hundreds of federal appellate court judges, state supreme court justices, law professors, and practitioners in the country and find the ONE who is better suited to serving on the highest court than all the rest of them.  There are easily a hundred people who have the legal skills necessary to serve on the top court.  Each of those hundred people could be justified as the best candidate available depending on what factors beyond legal skill are identified as being significant at this time.

So how should a president narrow down that crop of qualified candidates to decide which one person to nominate?  Of course a president should consider demographics of the court.  Of course a president should ensure that that body of 9 persons who decide so many issues so central to all of us doesn't become too homogeneous.  So many issues the court decides rely on the standard of a "reasonable person".  Judging such a standard necessarily requires a variety of perspectives so that the best possible standard can be reached.  Diversity on the court is a valuable asset.  Taking it into consideration when choosing from that large pool of best candidates is something any president should do.  Stacking the court with too many of any one type of person is something that should be actively avoided.

In that light, I was thrilled to read this piece about President Obama's hopes for his Supreme Court legacy.  I would love if this president could permanently alter the gender balance on this court.  I do not want a court stacked with women, but I do want a court that is not stacked with men.  Just because there are currently two women sitting on the court when for so long there were none does not mean there is not still an obvious gender imbalance on the court.  2 women out of 9 is still a small minority and 3 women out of 112 is a miniscule minority.  With his last court pick, I made it quite clear that he simply HAD to nominate a woman.  If he gets two or three more picks in his presidency and nominates women to fill all those spots, it would still only be a dent in the historical gender imbalance.  (Current tally is men: 109, women: 3.) 

So, once again, I will suggest that the president should select a woman.  From a  non-Ivy League law school (Big 10, perhaps).  How about a person not affiliated with any religion?  And it might be a good idea to reach away from the federal appellate courts into the realms of state courts or even plain old practitioners.  Perhaps even practitioners who have on occasion represented indigent defendants.   It really is a worth, even necessary, endeavor to make sure not all 9 of our high court's Justices look at issues from the same perspective.

Michael Scott might call this a lose-lose negotiation

So it appears that neither side won.  The Times Square bomb suspect was informed of his Miranda rights, but only after 8 hours of questioning.  Those who would say he should have no rights have to swallow the fact that we at least made a show of acknowledging the constitution.  But those of us who think his rights must be protected lost, too, because they weren’t.  A reading of Miranda 8 hours into interrogation is nothing more than a show.

In the camp advocating not following the constitution when a U.S. citizen is suspected of a crime is Sen. John McCain.  Tuesday, John McCain told Don Imus that he thought it was a "serious mistake" if the Times Square bomb suspect was read his Miranda rights before he was questioned by authorities.  In what possible way can respecting the rights of a U.S. citizen accused of a crime be a serious mistake?  Sen. McCain apparently can see a way.  He would skip right over Amendments 4, 5, 6, and any others and go straight to labeling a citizen accused of a crime as an enemy combatant entitled to no rights.  (Would that include the poor guy wrongly suspected of setting off the Olympic Park bomb?  Or that Portland lawyer whose fingerprint was wrongly associated with the Madrid train bomb?)  Sen. Joe Lieberman would go even further and revoke the citizenship of terrorists and their supporters.  They think it's more important to harshly interrogate someone suspected of being involved in a bomb plot to find out if there might be other such attacks pending.


Let's put aside for now the question of whether non-citizens are entitled to the protections enumerated in the Bill of Rights.  (Reading the plain language of the amendments, I believe they act as limitations on government and apply to all persons, regardless of citizenship.)  The question of citizens receiving constitutional protections, though, is not relevant here, so let's not go there.  This particular suspect is a citizen.  And let's just ignore Lieberman's suggestion because, well, I just can't take him seriously anymore.

As a citizen, this suspect should be unquestionably entitled to all of those rights we claim to love so much, including the presumption of innocence. This is a man accused of a crime.  We have a method for investigating that accusation.  We have a method for proving it in court.  And we don't consider it anything more than an accusation until 12 people unanimously agree that the government has proven the accusation beyond a reasonable doubt.  The fact that the crime involves terror shouldn't change our approach.

I have never been comfortable with the idea of the War on Terror.  That approach may work in dealing with battles in Afghanistan and Iraq.  But it should not be extended to criminal acts, even acts of terror, that occur within this country.  The criminal justice system worked just fine in dealing with those behind the Oklahoma City bombing.  It should be allowed to work in the case of an individual accused of setting a bomb in Times Square.  We should not create a separate class of criminal acts that are treated as something other than criminal.  Where would we draw that line?  Would the kid who placed pipe bombs around Iowa a decade ago be considered an enemy combatant?  What about the Unabomber? 

So I would say all Miranda all the time because, well, that's how we handle criminal investigations.  Sen. McCain would say no Miranda ever if the crime is the kind he thinks shouldn't involve rights.  But neither one of us is getting our way.  Instead, we're in this weird netherworld of treating a bomb in New York City as an act of war for a few hours and then reverting back to recognizing that it's a crime.  Doesn't seem like a satisfactory compromise to me.

Close encounters of the squirrel kind

I should have known something was up as soon as I walked in the door after work yesterday.  Maddie greeted me, but not as enthusiastically as usual.  She came over to say hi and then walked back to the treadmill by the front window.  She came back to me when she saw the leash, though, and dutifully headed to the front door for her bathroom break.  I only had a few minutes before my friend came to pick me up to head to our big night in Kansas City: dinner and the Pearl Jam concert.  I've been dreaming of that concert for 6 weeks since I was promised the ticket and for 18 years since I first fell for Eddie Vedder.  I feared the disappointment I would see in Maddie's eyes when I refused to take her for a walk, but this dog was not interested in being outside.  She quickly did her business and made a beeline to the door.  Now I knew something was amiss because even on nasty days that dog wants to linger outside and yesterday was a lovely afternoon.

She darted right back to that treadmill before I could even get the leash off.  There was something underneath it that she had to get to.  In vain, she tried to stretch her poor little paws an extra foot so they could reach whatever was there.  She madly tried to dig a hole right through the thing.  She was so frantic, I knew whatever was under there had to be better than the orange squeaky ball.  I've had mice in the house before, but surely a mouse would have just run into a wall.  Then I remembered the thing that had clearly gotten stuck in my chimney over the weekend.  The screen cap over my chimney must have come loose again and some small animal found its way in there.  I had hoped it was a bird that could just fly its way out.  The chimney is no longer attached to a fireplace but houses the duct work for my heating and air systems.  It empties down into the very creepy cellar I never go near.  Had whatever gotten trapped in that chimney found its way out through the cellar and then found its way into my library?  With much trepidation, I got down on the floor, laid on my stomach, and looked under the treadmill.  All I saw was eyes.  Eyes way too big to belong to a mouse.

I'm not ashamed to admit my first thought was, "Damn.  What a time not to have a man."  Yes, I know that's horrible and weak and shameful, but the wild animal in the house scenario is one I would happily turn over to the man to handle.  At least I'm honest about it.  On a more practical level, that man had a key to my house and treated it, and the dog, as his own, so could have taken over the squirrel-catching while I went about my long-established plans.  Because my second thought was, "No frickin' way am I missing Pearl Jam!" But as I assessed my options in addressing the crazed, wannabe hunter dog and the potentially rabid animal she desperately wanted to make her prey, most of them involved me missing Pearl Jam.

Animal control seemed the most logical option, but also the option most likely to ruin my plans.  Leaving the dog alone in the house with the squirrel and dealing with the situation later briefly flitted into my mind, but was obviously not an actual option.  So since Plan A (rely on man) was not available, I went with this as Plan B: plucky friend and her brave boyfriend, owners of a cat who regularly bring still-breathing animals in from the great outdoors.

Plucky friend and her brave boyfriend were over within minutes.  After much discussion, serious disruption of furniture and belongings in two rooms, and some flawed attempts to shoo it out the door, we finally managed to get the darn thing to scurry into a big box which we then carried outside.  (I knew keeping all those boxes even though I have no intention of moving anytime soon would pay off!)  As soon as it realized it was free from the box and the big scary beast (Maddie), the darn thing promptly scurried to the edge of the house where it desperately tried to find a way back in.  Gah! 

Coincidentally (or not), a friend also had a run-in with squirrels yesterday as she discovered that a family of squirrels have taken up residence in her attic.  They chose to openly and brazenly announce their claim to lawful residence on the very same day of my close encounter of the squirrel kind.  I suppose it could truly be an innocent coincidence, signifying nothing.  But the attack of "The Birds" surely started with just one or two residents of the soon-to-be-terrorized town noticing some aggressive bird behavior.  I can't help but wonder if we are facing a "Pinky and the Brain" style attempt to take over the world by bigger rodents.  Ok, so the squirrel in my house didn't seem as smart as Pinky, but maybe that was just an act to lull me and my crack squirrel-catching team into a false sense of security.  Or maybe it's just an isolated attempt to take over northeast Kansas.

At least on this night, the squirrels failed to take over my house.  The squirrel was evicted, I was only 10 minutes late to dinner, and I did not miss one second of Pearl Jam.

I am a bit of a pacer.  That's an understatement.  I have a hard time sitting still for very long.  I'm often puttering around my house whether I have chores to do or not.  At the office, I can often be found walking up and down the halls for no real reason.  I'm pretty good at inventing reasons for me to get up and walk away from my desk for a minute.  Even if I'm up against a deadline, I have to get up pretty frequently just to move around.  Sitting in front of my computer staring at a blank screen stifles me.  I write best in my head, then I transfer it to paper or computer screen.  And I write best in my head as I'm either wandering around, lying down on my chair, or playing computer games.  Visitors to my office (and, heck, even some of my colleagues) probably think I never get any actual work done as I'm almost never sitting in front of my computer with a document open. 

I happen to think my pacing tendencies help me write better issues.  But now I have evidence that my pacing is also saving my life.  My inability to sit still is actually good for me.

Is there any part of a lawyer's responsibilities that is more torturous than CLE?  In theory, continuing legal education is a fantastic idea to ensure that lawyers continue to learn and grow in their skills and keep up on the law and practice trends.  But in practice, CLE is the bane of my professional existence.  It is quite simply the most boring, and often the most useless, 12 hours of my year.  Especially the mandatory ethics hours.

The problem is that most CLE presentations are just dull.  Especially the ethics presentations.  Everybody relies on Power Points, but few use them in a way that truly enhances the talk.  At this past week's CLE, the presentation that held my attention the best was the one that was outrageously bad on the law.  The presenter had clearly not really prepared for his talk and had relied on old materials.  Because he had not done his homework, he gave a presentation that gave bad advice to the rest of us.  I happened to know this issue well because I had recently dealt with such a case, so I caught the glaring errors and bad practice tips in the talk.  But others in the room probably hadn't read the more recent cases and so might rely on his materials to the detriment of their clients.  Having exposed the flaws in this talk has caused me to question how much other bad law and bad advice I've received at CLEs over the years.

Too many people putting on CLEs don't take it seriously and don't make their presentations interesting.  Probably because it's not that easy to make a CLE presentation interesting.  One problem is that not all CLE topics are interesting to all lawyers.  Even criminal defense lawyers don't all want to sit through the same topics.  Please save me from topics relating to DUI or guns.  But I'm sure a lot of the DUI guys don't want to discuss capital voir dire, either.  It's not that easy to put on a CLE talk that is useful, informative, entertaining, and interesting to all participants.  I know when I've been in charge of a CLE presentation, I've struggled with finding a way to present my hour that will distract the audience from their iPhones.

I guess the bottom line is that CLE is just too much like school.  And even grown adults don't want to sit through class.  We all want to pass notes, play on our laptops, doodle, or daydream while staring out the window.  So, yeah, the theory of CLE as a requirement for all lawyers is so much better than the reality we all dread.  At least I have earned my CLE credits for the year, including those dreaded two ethics hours.