This should be a fun 4 years

Kris Kobach is running to be Secretary of State in Kansas.  I don't think he actually wants to be Secretary of State, but he's probably going to win.  You might not realize it, but you've heard of Kris Kobach.  Arizona's new immigration law?  Kobach wrote it.  A Nebraska town passed an ordinance about renting to and employing illegal immigrants.  Kobach wrote that, too.  He made headlines a few years ago for his lawsuits aimed at stopping illegal immigrant college students from paying in-state tuition rates.  Pretty much any law or lawsuit in this nation targeting illegal immigration, Kris Kobach has had a hand in.  Around these parts, we like to call him Krazy Kris Kobach.  (There have long been rumblings that he has some kind of ties to white supremacists, too.)

In the past, he has run for Congress.  Happily, he lives in the one Congressional district of Kansas that has consistently been represented by a Democrat, so he has not been successful.  He took some time off from campaigning after his last defeat and focused on making a name for himself on the illegal immigration front.  And then he waited for an elected office, any elected office, to open up so that he could run again and win this time.  So he settled on Secretary of State.  And somehow, even though the Kansas Secretary of State oversees elections and the registration of businesses and corporations, he has managed to run on an illegal immigration platform.  And he will probably win in this Republican crazy state.

His only real campaign point has been voter fraud, which seems to be code for "illegal immigrants are taking over our state."  Somehow, even though there have only been about 7 documented allegations of voter fraud in this state in the past decade, he's managed to make an entire campaign about the need to stop this epidemic.  He even has a radio commercial railing about out-of-control spending in Washington, that triumvirate of evil (Pelosi-Reid-Obama), "Obamacare", and all those other Republican talking points.  But he's running for Kansas Secretary of State, so that's all relevant how?  Well, because of voter fraud, of course!  He actually claims that all of those evil things can be cured if we elect him to be our Secretary of State so he can stop voter fraud.  (Never mind that this state hasn't voted for a Democratic presidential candidate that I can remember, has two strongly conservative Senators, and 3 of our 4 Representatives are quite conservative.  And the 4th spot should go Republican on Tuesday, too.  So it's pretty illogical to claim that voter fraud in Kansas contributed to Obamacare.) 

His most recent dire warning about the reality of voter fraud in Kansas was to claim that 2,000 names on the voter rolls in the state appear to match federal death records.  He didn't do much research on how many of those apparent matches really are names that should be removed from the voter rolls because the voter is dead.  This became obvious when he cited the specific example of a man who died in 1996 but miraculously voted in this year's primary.  This made for a great story when the Wichita Eagle called up the alleged dead man and asked him if he intended to vote on Tuesday.  (He does.  And it was his father who died in 1996, which is why this alive and well man was not removed from the voter rolls.)

I'm really excited about having to pay this guy's salary for the next 4 years.  Sigh.  You would think that Kansans would have learned not to allow ideologues to use an ill-fitting elected state office as a vehicle for pursuing their own crusades.  We let Phill Kline use the Attorney General's office in his single-minded pursuit of putting the state's abortion providers out of business and we're still dealing with the fall-out.  That office's other duties were badly neglected, most notably consumer protection.  I wonder how badly the mundane, very non-sexy, actual day-to-day duties of the Secretary of State's office will be neglected while this nut tilts at his voter fraud windmill and fills his free time with his anti-illegal immigration crusade.

Halloween just might be growing on me

In recent years, I have taken some flak for being a grown adult who doesn't particularly care to put together a costume for Halloween.  I would much rather take the opportunity to dress up in one of my cocktail or evening dresses that I don't get to wear that often.  Especially now that I'm back down to half-marathon weight and all my dresses look fabulous.

So last night I decided to compromise.  I wore my favorite, slinkiest black dress and declared that my costume was "Hot chick in a slinky black dress."  Judging by the reactions of Brett Favre and Old Spice Guy*, I do believe it was my most successful costume ever.  Maybe I have been a little too rigid about this whole Halloween costume thing.



*In case you're wondering, choosing between Brett Favre and Old Spice Guy isn't easy, so I didn't.  They both got my number.  But Brett is on a short leash when it comes to texting...

Can I confront you now?

If you've been around this blog for a while, you know how much I love my Confrontation Clause issues.  They are easily my favorite issues to write and to argue and just to ponder.  And, of course, I also love football.  And true crime stories.  Which brings us to the latest twist in the strange, sad saga of Rae Carruth.

Remember Rae Carruth?  He's the former Carolina Panthers wide receiver who, in the middle of the 199 season (his 3rd in the NFL), was accused of arranging the murder of his pregnant girlfriend, Cherica Adams.  Happily, the child was delivered safely before its mother died, though rumor has it the child is not exactly healthy.  There was also the side story of Carruth jumping bail after Cherica died and being found a few days later, hiding in the trunk of a car.  In 2001, he was convicted of conspiracy to commit murder and a couple smaller charges, and I haven't given him much thought since.

Until today, when I read that he is appealing his convictions in federal court.  Some of the evidence presented in court were statements Cherica Adams made to a paramedic, a nurse, and police before she slipped into a coma.  Those statements implicated Carruth, but because she died, Carruth's defense was never able to cross-examine her. When I read that this morning, the appellate defender in me let out a big gasp and said, "Oh, snap!"  Because this, my friends, is a good issue.  There may be some procedural issues (I'm not an expert in federal habeas by any stretch, I'm not getting into the question of whether Crawford applies retroactively, etc.), but on the merits of the Confrontation issue, it's a good issue.

See, in 2001, those statements were admissible under the current state of U.S. Supreme Court law.  But things have changed since then.  Oh, how they have changed.  Back in 2001, the district court was able to decide those statements were sufficiently reliable to be admitted at trial regardless of the defense's inability to cross-examine the witness.  In cases where a hearsay declarant was unavailable to testify at trial, district courts were empowered to consider the circumstances in which the statement was made to decide whether the statement was admissible without cross-examination.  Happily, in 2004, the Supreme Court overruled that dreadful precedent and said the Sixth Amendment means what it says: the accused has the right to confront his accuser.  If the witness isn't available and the statement is testimonial in nature (roughly meaning a statement made in anticipation of a prosecution), the statement cannot come in unless the defense has had the opportunity to cross-examine the witness.  So much simpler and more constitutional than the old rule.

So going back to Carruth's case, Cherica Adams told a police officer among others that Carruth was involved in her shooting.  The defense never got to cross-examine her.  There are lots of significant facts this short article doesn't include that would be necessary to properly analyze the Confrontation issue.  Was she responding to medical questions?  Was she safely in the ambulance?  Was the police officer asking questions and she was responding?  I am a big, big law nerd because I have been pondering these questions all day long.

The real lesson of this is what a difference 3 years makes.  If Carruth's trial had happened just 3 short years later, he wouldn't  have these grounds for appeal because his case would have been tried fairly the first time.  Courts do that all the time, though.  They change the rules midstream and it's usually with not even an, "Oops, sorry," to the poor schmucks whose appeals were done even the day before this new rule was announced.  I'm really hoping the federal court in this case won't find some stupid procedural bar to keep from considering Carruth's legitimate confrontation issue.  Maybe even without Cherica's statements, there was plenty of evidence to convict Carruth.  Maybe not all of her statements would be excluded under proper confrontation analysis.  But a court should at least consider the possibility that Carruth deserves a do-over.

Artur for A.G.

It's probably not a surprise for you to learn that I'm a big believer in voting.  I vote every election and I always go to the poll on election day.  None of this advanced mail-in voting for me!  There are two particular races that always pose problems for me: District Attorney and Attorney General.  Two years ago when our District Attorney was running unopposed for reelection, I just couldn't bring myself to vote for him.  On behalf of my clients in this county, I just couldn't vote for the man who had prosecuted their cases.  So I organized a write-in campaign of sorts.  I got about 10 of my friends to write-in my suggestion. 

This November brings a vote for Attorney General.  In 2006, I had no difficulty whatsoever voting for the guy who was running against Phill Kline, but that was the only A.G. election where I wasn't conflicted.  When Kline first ran in 2002, I was no fan of his crazed anti-abortion agenda, but I didn't think he was the worst choice for my clients.  Kline's opponent in that year was a prosecutor whose work I knew, and disrespected, well.  After 4 years of A.G. Kline, though, I had no difficulty voting for his opponent.  I might have voted for Satan himself.  Happily, Mr. Kline lost, though the state is still dealing with the fall-out of his tenure.  The man who replaced Kline was forced to resign about a year later.  He was replaced by the current Democratic nominee for A.G., Steve Six.  I was excited by this because Six has seemed like a nice good, sensible man when I've met him, and because he went to my college. I was thrilled at the prospect of getting to vote for a fellow Carl.

But over the course of Six's tenure as A.G., reality has set in.  Much as it pains me to say it, I have come to the conclusion that I simply can't vote for him, Carleton connection notwithstanding.  He has disappointed me too profoundly on too many occasions.  First, when the state legislature was considering repealing the death penalty on the basis of cost, the A.G. opposed that.  I recall him making a disingenuous statement to the legislature that there was no real added cost to his office, but I can't find the testimony I'm recalling.  At any rate, I wasn't pleased with his repeated public statements that we should keep the death penalty so we can execute my clients.  As noted with the D.A. election mentioned above, I tend to take those things personally.

Then Six very much upset me this May when he filed an amicus brief with the U.S. Supreme Court supporting the Maryland father who has sued the Westboro Baptist Church over their funeral protests.  He is simply on the wrong side of that issue and I am appalled to have the lawyer for my state (and a Carleton grad!) leading the charge to use a court of law to silence unpopular speech.  Other Kansans should stop trying to get me to "Stand with Steve" on that one because I most definitely do not.  In fact, I'm fairly certain he lost my vote the moment he stated that the Phelps family should not be allowed to "hide behind the Constitution."

The campaign he has run this fall hasn't done anything to change my mind about not voting for him.  He has run ads criticizing his opponent for taking contributions from payday loan companies and then supporting legislation that allows high interest rates on those loans.  I liked that point until I realized that Six has accepted twice as much money from payday loans.  So should I worry that he would go soft on pursuing consumer protection claims against payday lenders?  He's also touting the fact that he has tried two murder cases since he's been A.G., but in my view, those cases would have been better left to experienced trial prosecutors rather than by a former civil lawyer looking to score political points.

The bottom line is I simply cannot, will not, vote for Six.  But his opponent isn't someone I would ever consider voting for, either.  (Supports the death penalty, wrote the Kansas Jessica's Law bill, etc.)  Once again, I am in a no-win position when it comes to voting for an elected prosecutor.  Since May, I have been casting about for a proper write-in choice.  Obviously, my chosen candidate will not win and the two major candidates won't stew about this one voter's choice, but I am making a point.  To myself if to no one else.

So since we are coming up on election day, it is time for me to announce the lucky recipient of my write-in vote for Attorney General.  I considered many candidates, but in the end I selected the one best-suited to my needs (and by that I mean we were drinking shots at The Burger Stand one night and he asked me to write him in).  My vote for Attorney General will go to Artur Bagyants.  (Sorry, Meryl, but it's been a while since you've done a shot with me.)

My own version of Don't Ask, Don't Tell: Don't ask me to support Boy Scouts and I won't tell you how I really feel about their official policy of discrimination

This is why you should not dare to ask me to buy anything from your adorable little Cub Scout or your oh-so-earnest Boy Scout.  As an atheist, I'm not terribly offended by the exclusion of atheists from leadership roles.  It's a private club with a religious philosophy, so I wouldn't be a good leader.  I would have no interest in leading, either, because I would want to leave out anything relating to religion.  I am, however, offended by the exclusion of atheist boys from the organization at all.  I have heard stories of young boys not being welcome because they did not believe in god, which strikes me as utterly absurd because 8, 9, 10 year-old boys have surely not yet figured out what they believe.  The vast majority of kids that age are just parroting what they've heard at home, so it offends me deeply to exclude the boys who parrot the "bad" things while including the boys who parrot the "good" things.  Neither one of them has any real clue what they'll think when they mature and stop parroting their parents.

But I am terribly, horribly, deeply offended by  the exclusion of this father from any official role with the organization.  I am so beyond done with all of this nonsense about homosexuality being immoral, unclean, icky, gross, something we need to shield our kids from.  Good grief, it's so ridiculous.  And mean and hateful and wrong.  Any father who wants to be an active participant in his son's scout group shouldn't be relegated to the role of a non-leadership "volunteer" who isn't allowed to wear a Boy Scout shirt.

As long as this remains the policy of the organization, they will not get one red cent from me.  And should I ever have a child, no way in hell would I allow that child to be part of this organization (unless and until the official policy changes).  I would start my own scout group.  Because excluding good people just because they are gay  is wrong.  And I will  not in any way, shape, or form support an organization that thinks otherwise.

Here is a sweet story out of Topeka about prison inmates getting involved in the outside community.  Inmates at Lansing Correctional Facility grow pumpkins.  Then in the fall, they travel to local schools and distribute those pumpkins to kids who otherwise might not get a pumpkin. 

There are a lot of things to like about this story.  I think prison gardens are a great idea, giving inmates something to feel proud of, providing them a connection to their community when the product of those gardens goes to schools or hospitals or soup kitchens.  Not to mention it's always a good idea to teach inmates skills, especially a skill as profound as growing their own food.  I think there's also tremendous value in showing guys who will likely be released eventually, or even soon (these guys are all minimum security), that they are not total pariahs, outcasts who will never find a friendly face on the outside.

In a time of state budget cut after budget cut, I feared that programs like this one would be the first to go.  There just isn't enough money to house all the inmates we insist on imprisoning in our "no sentence is too long" culture.  But cutting out the programs that allow inmates to feel like humans, with skills, the ability to contribute to a community, and a connection to good  people, is pretty darn counter-productive since we can't actually keep every offender in prison forever.

I was also pleased to see that, for the most part, the comments on this story were not of the sort I would have expected.  Some were downright positive.  I was worried that more people would see this as something to be outraged about (inmates near children?!  inmates on a field trip off the prison grounds?!  inmates breathing fresh air?!  Outrageous!).   There was some of that response on other newspaper websites, but still less than I would fear.  It's good that at least some people recognize the value of a program like this.

I'm all for giving Sarah Palin what she wants

I just saw a promo for Sarah Palin's new show, "Sarah Palin's Alaska."  Sorry, it's not a "show" it's "An 8-week television event" according to TLC.  (And, yes, I saw the promo because I was watching "Sister Wives."   Polygamy fascinates me.)

In this promo, Palin gave great ammo to anyone who should ever run against her for any political office in the future.  She oh so delightfully says, "I'd rather be in the Alaskan wild bein' free than in some dumpy old political office."  That, her speech quitting the governor's office.  The political ads for her opponents should she ever put her hat in another ring, like say for the Republican presidential nomination in 2012, practically write themselves.  Or rather, she writes them.  As someone who trembles in fear at the prospect of Palin getting anywhere near the White House, I can only say, "Thanks, Sarah!"

Today, I'd like to wish a happy birthday to one very special little boy.  Love ya, kiddo.

Unfinished

That is the most apt description of so many aspects of my life these days.  Home repairs are unfinished.  (I need to patch some drywall, repair the kitchen ceiling from the leak damage, and paint.)  Knitting projects are unfinished.  (Two hats, a glove, a blanket, a table runner.)  My cases are unfinished.  (They drag on for years and none of them are near resolution.)

And then there's that big Thing, the thing I'm supposed to be moving on from.  It feels so unfinished.  I may be the only one who feels that way and I don't think I'll be getting any help in no longer feeling that way.  Maybe it will just always feel unfinished to me, like the symphony a master composer was working on when he died.  So I'm feeling the pressure to get all of those other projects finished in the hopes that maybe that will make up for the big, giant unfinished elephant in my life.

The truth about Sarah

I may be a little competitive.  Or a lot competitive.  If you host a competition or contest of any sort, I play to win.  Casual friendly Texas hold 'em gathering at a friend's apartment?  I'm taking the trophy.  Silly word games at a baby shower?  Please, we all know who will have the highest score.  Wine tasting contest?  No one is walking out with that shiny new set of $5 Walmart wine glasses but this gal.

If there's a trophy or a prize, I want it.  I want the bragging rights, the high score, the respect.  Even the games no one else cares about, I do.  Because I have to come in first.

And don't try to tell me you are more competitive because I will win that contest, too.

Charge first, then investigate

Back on August 2, an 11 year-old boy in Kansas City apparently shot and killed his father.  As I recall the details from the original story, police upon entering the home determined the house was uninhabitable.  I definitely remember mention of exposed wires and other structural concerns, and I can only imagine that sanitation issues were also present.  Yesterday, prosecutors dropped the charges of second-degree murder and armed criminal action against the boy, saying that the years of severe neglect the boy had suffered left him with "no choice" but to shoot his father.  Not many details have been revealed, but what we have learned suggests that this boy was living a life more horrific than we might easily imagine.  I shudder to think what was going on the night of the shooting that left the boy with no choice.

I am glad to see that good sense and human decency have prevailed here.  From what few details have been released, it seemed clear to me that the last person who should be held accountable for this man's death is the young boy who was treated so horribly.  First, daddy dearest should be held responsible for putting his son in the position of needing to pick up a gun to protect himself.  Other family members who let the boy remain in those deplorable conditions should bear some of the blame.  I don't know whether the state agency responsible for investigating abuse and neglect were ever notified about this boy, but if they were, boy, should they be held responsible.  I'll also level some blame at all the other adults who had a chance to see this boy and not pick up on what was going on in his life.  Bottom line is the severely neglected kid should be receiving care, treatment, and support, not a criminal record.

The juvenile court held open a child-in-need-of-care petition in the case, so the boy will be able to receive some of the care and treatment he so desperately needs.  I want to credit the prosecutors and the court for finding the right resolution to this case, but I don't quite want to let them off the hook for filing murder charges against him in the first place.  The linked article notes that the boy was brought into court wearing shackles, which would seem a ridiculous overreaction for almost all 11 year-olds, let alone one who should not have been regarded as a criminal.  (Whether any 11 year-old should be regarded as a criminal is a topic for a different post, but long-time readers might have a good guess what my thoughts on that topic are.)

So the default position was to assume this severely neglected boy was a felon and then let an investigation clear him.  Shouldn't the presumption work exactly the other way?  Especially with a child this young.  The state didn't need to file felony charges against him to take this boy into custody.  That much ought to be obvious.  A severely neglected child found in an uninhabitable house can be taken into protective custody.  It shouldn't have been that hard to keep him in state custody pending psychiatric evaluations, educational evaluations, etc.  Not to mention it shouldn't have been difficult for a judge to decide there was no suitable familial placement available for this boy since his family let him live this way without intervention.  But instead of treating an 11 year-old as a child in need of care and letting an in depth investigation reveal whether the boy should in fact be charged with some form of murder, the powers that be defaulted to charging a crime and then deciding whether that charge was actually warranted.

I'm disturbed that this seems to be the way things work in the criminal justice system anymore.  The charge is filed first and then the prosecution investigates to see if the charge will hold up.  Prosecutors shouldn't file charges so lightly, though, because the mere fact of being charged with a crime can be devastating.  Adults can lose jobs.  They can lose thousands of dollars to bondsmen and to attorneys.  And they don't get any of that back when it turns out the complaining witness was a big, fat liar or an alibi turns out to be ironclad.  But think of how emotionally devastating a charge might have been to this little boy.  For years, he had no one to protect him or stick up for him.  When he finally reached the point where he could stick up for himself, he was immediately treated like a criminal for doing so.  Will he ever have the courage to stick up for himself again?

The need for police and prosecutors to investigate a case fully and make sure they understand the facts before filing charges has never seemed more starkly obvious than in this case.  This boy had suffered more than enough without the state piling on by accusing him of murder.

October 1 will always be a significant date for me.  It's not an official anniversary or someone's birthday, but 5 years ago tonight was the most exciting, memorable night of my life.  It didn't quite end the way it was supposed to, so it was also one of the more upsetting nights I had experienced.  But in hindsight, I think it might actually have been a good thing that a wrench was thrown into the plan because the way we both responded made it all the more clear we were pursuing something we both really wanted.

That night didn't mean much to most of the people who were there and I don't expect anyone else remembers the date.  For me, though, this date has always meant more than any actual anniversaries or holidays.  As I was sitting alone tonight, wishing I could recapture the feelings of that night and find the confident, interesting, put-together woman I used to be, it became really important that this anniversary be acknowledged, even if only by me.  Five years ago tonight was truly the start of something special.