I just saw on Rachel Maddow that Gov. Nikki Haley of South Carolina has mandated that ALL state workers must answer their phones, "It's a great day in South Carolina." (She must watch Bravo TV because that sounds like what Jeff Lewis requires his employees to say when they answer the phone.)

Wow. Let me just say right here, right now. I would not, will not, ever, EVER answer calls from my clients on death row by telling them it's a great day in the state that wants to kill them. And if I were a capital public defender in South Carolina, I wouldn't either.

Ladies and gentlemen of the jury...

On the whole, I am glad that my career path led me down the road of appellate work. I like the writing and the focus on the law. I like waxing poetic on grand concepts, which doesn't happen much in the nitty gritty of trial level work. (It probably shouldn't happen so much on the appellate level, either, but it works for me.) I like that I can avoid early morning work as 8 am and I do not get along well. And I have been assured by friends with district court experience that district court judges would drive me crazy with their sometimes more casual approach to applications of case law and statutes. Not to disparage anyone. There is just a certain level of winging it that goes on in district courts (an effect of over-crowded dockets?) that would break this precision-loving lawyer's heart.

I am certainly not sorry I have not ever had to conduct jury selection and I sincerely hope I never have to. But that is a topic for another blog post. (coming soon)

But like any smart-ass lawyer (is there another kind?), I do still fantasize about conducting that awesome cross-examination that catches the complaining witness in a lie fatal to the state's case.

And I have always wanted to give a closing. A killer closing. A closing in a case like that in "Twelve Angry Men" where guilt seems so obvious, where everyone fully expects the defendant to be found guilty, where the media has already sentenced the guy to life in prison, but where one brilliant lawyer (ok, so in the movie it was a persistent juror, but work with me here) piece by piece shreds the state's case so thoroughly that the vote for acquittal takes all of 5 minutes. What defense lawyer doesn't want to give that kind of closing at least once in his or her life? I've given oral arguments that I felt really good about. I've even given one or two where I think I changed a judge's mind. But that closing argument still haunts my dreams.

I've been thinking about that this week as the Amanda Knox appeal trial (where in Italy the appeal is essentially a second trial of fact, unlike our appellate process which only looks at the law) has been in closing argument. Because her trial also involves some civil suits (which hurts my heart because they really need to be separate), there have been 4 different parties giving closing argument since last Friday. Amanda's lawyer has yet to go. As you might recall, I got sucked into the internet craziness that surrounds this case back in June when I wrote what I thought was a fairly innocuous blog post. That post is by far (by a magnitude of at least 4) my most read post. By far the most comments of any of my posts. And it introduced me to the weird, undergound internet world of Amanda Knox Guilters. A cabal, really. They're nuts, as you might have learned if you followed any of those 250+ comments. So because I'm a compulsive researcher, when they started challenging some of my views, I researched so I could respond. Not assuming that I would refute everything they said. I certainly wouldn't have assumed that everything they would spew was nonsense. But it is. And they go around the internet continuing to spew their nonsense.

So now, without really meaning to, I have gotten sucked into this case. I have read 4 books on it. I have corresponded with people. I have come to realize just how much misinformation persists about this case. Even the BBC's online news archives still includes stories that are provably false, with no update, no asterisk, no retraction. So it's become easy to understand why regular, intelligent Americans who aren't as obsessive as I am still think she might have had something to do with it, if for no other reason than that she lied too many times, changed her story too much. (She didn't, but it's become part of the white noise surrounding the case that too many people simply accept that as gospel truth.) And if you know me at all, you know I can't let that stuff go. This case has become my perfect storm this year: a wrongful conviction, misinformation all over the internet, and illogical arguments. You know what all of that means for me, right? I HAVE TO FIX IT!

And so my dream has morphed from not just giving any old closing argument, but giving THIS closing argument. Because I know this case that I have absolutely no connection to, and I now know I would rock this argument. No, I would knock it out of the park. I would knock it so far out of the park, it wouldn't even be able to see the park. It would go all the way around the world and come back into the park. And I wouldn't have to resort to name-calling, like the civil lawyers against her have. I wouldn't need to write a 400 page document like the Judge did in justifying her conviction. (Hint: if you have to work that hard to make your case, you don't have a case.) No, I think I could bang that argument out in half an hour. And I could get a jury to acquit in 20 minutes. (The first 15 minutes would be the jury oohing and awing over my brilliant closing, of course.) Because the "case" against her is so ridiculous and I am in most in my element when I am knocking someone else's totally illogical claims down. You really want to see me go on a tear? Say something really illogical in my presence and I will go all kinds of Julia Sugarbaker on you.

But I won't get to give that closing. Or any other closing any time soon. So it will remain just a dream. But I will have you know that in my dream, I nailed it. Whatever closing I had in my head that day, I freakin' nailed it.




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Location:Ladies and gentlemen of the jury

I really wish Adele's latest song "Someone Like You" weren't so darn good. Because it gets played all the time. On pretty much every radio station. As it should because it's a really good song.

But, damn, that song hits close to home! Way, way too close.

On a side note, I also wish (hope) that someday, I would be able to attend a CLE again. But it's not looking good for the foreseeable future. Sigh.

On a completely unrelated note, I wish I could be 5'6 every day. I was today, thanks to my fabulous new (Target) shoes with the 4 1/2 inch heel.* I like being 5'6. That was always my dream height. Sigh.



*Yes, I can walk in them. I walk in all kinds of ridiculous shoes with ridiculous heels. It's flats that give me trouble.

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Location:Wishes

I'm hardcore, part 2

"Moneyball" may well be a great movie about baseball, but for a real, true, hardcore Royals fan (like this blogger), there's a problem. (Fortunately as far as this movie is concerned, there may not be that many real, true, hardcore Royals fans left.)

See, in this movie, as in most sports movies, there was a key game situation that highlighted the dramatic climax. As a movie-viewer, I was supposed to root for the A's to win this game. (As a person who follows baseball, I knew how it turned out, too.) And, yet, the key game was against my Royals. Turns out, I was right all those times I declared myself not a die-hard Royals fan, but a die-never fan. Because while watching this scene, which was supposed to be nerve-wracking for the movie-viewer who wants the heroes of the movie to prevail, this Royals fan was rooting for the other team. I was rooting for Joe "The Joker" Randa and Raul Ibanez to score. And I cheered when Mike Sweeney hit the big 3-run homer. And in the pivotal, final at-bat, when I was supposed to be rooting for the nice guy we'd been following for 2 hours, Scott Hatteberg, to come up with a big hit, I was rooting for Jason Grimsley to strike that motherfucker out.

They may suck, be incompetent, have terrible pitching, have no power, and regularly lose over 90 games a year, but gosh darn it, I will always, ALWAYS root for my Royals.

Allen Ault, a former prison warden in Georgia who personally participated in executions, just spoke on MSNBC in the aftermath of Troy Davis' murder. The man sounded tired, somber, and sad. He spoke about the toll that participating in executions takes on the corrections staff. He spoke about how  he could see no justification for it. He talked about meeting with victims' families after the fact who did not feel any peace or sense of closure after an execution. He explained how he always had psychologists available to speak to his staff after an execution because they would need therapy for dealing with what they had just done.

So we engage in a punishment that is so morally questionable, the people who carry it out need therapy. And that's not even getting to the attorneys. Or the journalists who have to watch the executions.

There are so, so many reasons I am opposed to the death penalty, but this has always been one of them. Asking our fellow citizens to take part in an intentional, premeditated killing of a human being is far, far more than we have any business asking.

What a waste

I like to see people involved, energized. Not just thinking about what's wrong, but what they can do to fix it. So I hate to criticize when people do get involved, find a cause and pursue it. But...

Parents call for boycott of Ben & Jerry's Schweddy Balls flavor

Seriously?? This is what you're getting up in arms about? Communicating with the media about? Trying to organize a boycott about? Because ice cream with a "vulgar" name is somehow harmful to children, oh you concerned moms?


Here's my suggestion, not that you asked or care what someone who thinks Schweddy Ball ice cream is funny and is downright in favor of Hubby Hubby ice cream (and the gay marriages that flavor is celebrating). I think if you really give a hoot about children, your time, energy, and resources might be better aimed at fighting cuts to education and arts programs. Perhaps creating some after-school activities that could include at-risk children. Maybe organize literacy drives, pairing tutors with children who aren't reading well. Team up with Big Brothers, Big Sisters because mentoring kids is one of the best things we can do to keep at-risk youth from going down a bad path. Buy books for libraries. Form softball leagues to get kids involved in team sports. (The stats for girls involved in teen sports are really encouraging. They go to college and they don't get pregnant at great rates.)


These are just a few ideas I came up with off the top of my head. I'm sure there are other things you could come up with, things that would suit your particular communities and interests. In short, there are lots and lots and lots of great things you can do to help children and show your concern as moms. None of them have anything to do with raising a stink about the name of a flavor of ice cream.

Godspeed, Troy Davis

The Troy Davis case is one we death penalty opponents have pointed to for years. One of my first ever blog posts was about that case, written for a different site but eventually transferred to this blog. I have revisited the case over the years here. You can search through my archives to find those posts. I am frankly too tired and beaten down to do that work for you right now. Because today is the end.

Today is the day I and other abolitionists had hoped would never come. There are no more appeals to be made. There are no more clemency petitions to file. There simply is no more hope. There will not be a last-minute miracle to save Troy Davis from the sentence that a jury imposed on him 20 years ago.

Plenty of courts and attorneys and clemency board members have looked at this case over the years and said, "Well, a jury found him guilty and I don't see any reason not to just go with that." Never mind that members of that jury now disagree. One was quoted recently saying that if she had known then what she knows now, she would never have found him guilty.

The problem with this case, of course, is that a jury did once find him guilty and he cannot now prove his innocence. He can make a very, very compelling case for reasonable doubt. He can point to lots of evidence that another man was the shooter. (A man who is one of only 2 original trial witnesses who have not subsequently said their testimony was the result of police pressure.) But he can't definitively prove this other man was the shooter. And so he loses on review. Because once upon a time a jury convicted him.

And apparently that's good enough for us as a society. We are deciding today, by executing Troy Davis, that we are ok with uncertainty in the process we use to intentionally and with premeditation kill people. So many people want to proclaim that they're only ok with the death penalty in cases where guilt is clear, obvious, 100% certain. But reality doesn't yield those cases very often. And even if it does on occasion, it also quite often yields cases like this. Cases that are filled with uncertainty but which nonetheless resulted in a guilty verdict and a death sentence. Maybe those 12 jurors were once upon a time convinced Davis' guilt was clear, obvious, 100% certain. But they aren't now and our death penalty system, the one that so many people support with this naive notion that we only use it on people who are obviously guilty, offers no way for the jury to now be heard when they say they're no longer certain. In reality, our criminal justice system does not have 100% certainty. So if you support the death penalty, you're supporting this kind of outcome. One where an awful lot of people have an awful lot of reasonable doubt, but once upon a time one random collection of 12 people did not have doubt so we'll carry on with an execution.

Well, I'm not ok with it. This isn't good enough for me. There is nothing that I can do, though. I will wear black today, though I wear black so often no one will realize it signifies anything. And I will continue to fight against the death penalty for all the other Troy Davis' out there with the hope that next time, the ending will be different. But the end is here for Mr. Davis and in this moment I can find nothing more to say than it really, really sucks.


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My head hurts

College sports conference realignment talk is making me crazy. We went through it all last summer and now it's back again. People around these parts can't stop talking about it because our school is in such a tenuous position. Realignment is all about football and our football program quite frankly sucks. I try not to read the stories about it. I shut my friends and family up if they even bring it up. I don't want to talk about it. I don't want to think about it. I just want to stick my fingers in my ears, shut my eyes, and sing, "La la la la la" until it's all over.

I just can't stand to consider the possibility (remote though I'm sure it is) that the greatest tradition in all of college basketball, the tradition from which all other great college traditions sprang, could possibly end up in some crap-ass conference. But I did happily see this evening that the Pac-12 has decided not to expand. I feel better knowing that Texas and Oklahoma need the Big-12 to survive.

It's official

Do you hear that sound? That was the collective sigh of all the good and honorable gay and lesbian service members who have for far too long had to go to work every day and not engage in the normal conversations all their straight co-workers could. Because this morning, when those soldiers and pilots and officers went to work, they could now let some seemingly innocent detail about their home lives slip and not lose their jobs.


The reality of Don't Ask, Don't Tell was that it made people lie to serve their country. It made them live a life of dishonesty, a life without integrity. And all because some jerks are uncomfortable with gays, don't want to be around it or reminded that there are gay people in the world. But let's be clear. Being free to mention the name or gender of your significant other isn't being "in your face" about your sexuality. It isn't asking for special rights. It's just what all normal people do (or should be able to do) every day of their lives.


And I don't really care anymore what the jerks who oppose repeal have to say. The Elaine Donnellys of the world can make their stupid, prejudiced, mean-spirited remarks, and I'm not even going to rant about them. Because we won, they lost, and we're not going back.


Huzzah!

I do believe if I hear Republicans cry out that Democrats and President Obama are engaging in "class warfare" one more time, I will scream. Oh, wait, I have already screamed. Because it is infuriating. Beyond infuriating, really. Stop with the meaningless rhetoric and scare tactics, please.

It is entirely possible that my expectations are too high. But I think I'd rather have expectations set too high than too low. Maybe I should work on having more realistic expectations, though.

In which I shamelessly brag about my angel of a dog

Indulge me, will you, while I take a moment to express how thankful I am that this little girl came into my life. She may just be the best-behaved dog ever. I can leave my $200 shoes lying around without any fear that she will chew them up. She never touches them. (Yes, I have two pair of shoes that cost $200. Don't judge me, they're fabulous and worth every penny.)

I can leave my knitting projects on the coffee table and she won't touch them. I can take her outside in my un-fenced yard without a leash and never worry about her running off. I can take her for a weekend to my friends' house and know she will play gently with their 9 month-old son.

Everyone loves her. No one can resist petting her. I can't take her for a walk without getting comments on how adorable she is. (Once a 20 year-old sorority girl loudly said to her friends, "I want that." Sorry, hon, but you can't have her.)

Of course, she's not perfect. She's kind of a beggar when there's food around. (Not my fault. Someone else created that monster.) And when she wants to play, she can be quite demanding.

But, really, she's the best dog ever. Rough as the last year and a half have been, it would have been a whole lot worse without her.

One of the common responses any death penalty opponent hears often is, "You'd feel differently if it were your family member who'd been killed." I can protest against that until I'm blue in the face, but the death penalty proponent will almost never do me the courtesy of believing that I would hold true to my principles even in the face of a terrible personal tragedy. I can also point out that there are plenty of victims' family members who do not support the death penalty, but that point is usually ignored.

Well, here is a beautiful example of a family, still in the immediate grip of grief, who is standing firm in its conviction that the death penalty is wrong. The family of James Anderson, the black man in Mississippi who was beaten to death by a group of teens for no reason except they wanted to hurt a black guy, has asked prosecutors not to seek the death penalty against his killers. First, the family noted that they, and Mr. Anderson as well, oppose the death penalty. Second, the family expressed the desire for their family member's death not to be used as a chance to somehow even the racial justice scales in Mississippi by finally sentencing white people to death for killing a black person. (In general, people who murder white victims are far more likely to face the death penalty than people who murder non-whites.) The family further expressed the hope that ultimately Mr. Anderson's death and the prosecution of his killers could lead to a larger discussion about whether we want to continue having a death penalty.

This, I submit, is the response I would have if one of my family members were murdered. Nothing could be more insulting to the memory of my mother, for example, than for the state to seek death for her killer. She has been active in the campaign against the death penalty for as long as I can remember, so much so that she produced a daughter who turned that campaign into a career. Knowing what I've dedicated my professional life to, I can't imagine that the people who love me wouldn't make themselves heard all over everywhere if prosecutors ever tried to turn my murder into a capital case. (Indeed, if they didn't, I would haunt them. I can be really scary when I'm pissed off, so add ghost to that and I'd be downright terrifying.)

So I will pass on the message of James Anderson's family and share their hope that a good discussion about whether we really want to continue as a society that perpetuates the cycle of violence and adds to the tally of people intentionally killed can come out of this senseless death. I don't want us to be such a society and now we have clear evidence that people can still feel the way I do even after a family member has been murdered.

Don't Stop Believin'

I'm a mean, horrible person, but I'm rather enjoying the drama surrounding erstwhile DC Housewife and White House crasher Michaele Salahi. First, her husband reported her missing, a story picked up by the news today. The police reported that they had received a phone call from her telling them she was ok, but the husband insisted she was kidnapped and her abductor forced her to make that call.

Surely we can all see where this is going, right? I mean, the only question was who exactly was the wife running away with?

But we didn't know the answer would be this awesome. Because she ran away with the guitarist from Journey! At this moment, she is with him in Memphis where his band is set to perform with Foreigner. In keeping with the nostalgia element of a Journey-Foreigner tour, Michaele and the guitarist reportedly used to date.

(Sadly, the guitarist is also married and has a 7 year-old daughter. But the rest of the story is pretty amusing.)

Every time I think about September 11, and like most of you (I assume), I think of it often, the first thought I always have is how unbelievably fortunate we are that only 3,000 people died in that mess. When you think about how many people worked in and around those buildings and the vast scope of the destruction to that neighborhood, the death toll really should have been so much higher.

My thoughts on NFL Week #1

I hate football.

That is all.

The truest friends are those around whom you always feel like your best self. I am lucky enough to be spending my weekend with such a kindred spirit. May you all also have friends like this available to you.


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Persistence

Can we take a minute to acknowledge the Dutch woman who allegedly called her ex-boyfriend 65,000 times in a year? 65,000 phone calls. One year.

Do the math on that. That breaks down to 178 calls a day. 7 calls an hour. Every hour. For 365 days.

You know what that is? I mean, other than obsessive, deranged, disturbed, creepy, almost incomprehensible to a rational mind? That is dedication to a cause. That, my friends, is persistence.

And you know what they say about persistence. It may not have paid off in the way she wanted (seriously doubt the ex-boyfriend is back to being the boyfriend), but it sure got her some attention!

Not that I expected anything better, but I still reserve the right to be disgusted

I know, I know. I said I shouldn't watch any additional Republican debates. But I just can't help myself. My mom and I have debated whether we're masochists or just involved citizens. We decided it's probably a combination of the two.

So, anyway, I watched the debate tonight. (They mercifully stayed away from the social questions, like abortion and gay rights, that are surest to make my head want to explode.) But Brian Williams had one question just for Rick Perry at the tail end of the debate.

Brian Williams began, "Governor Perry, a question about Texas. Your state has executed 234 death row inmates, more than any other governor in modern times. Have you.."

At this point, Williams was interrupted by applause. Fairly loud applause. And I wanted to cry. Or scream. Because being that enthusiastically in support of killing 234 people seems a little off. I'm sugar-coating it there. I think it's despicable. I think it's awful to cheer for the intentional killing of anyone, let alone 234 people.

Williams was finally allowed to finish his question to Perry, "Have you struggled to sleep at night with the idea that any one of those might have been innocent?"


PERRY: No, sir. I've never struggled with that at all. The state of Texas has a very thoughtful, a very clear process in place of which -- when someone commits the most heinous of crimes against our citizens, they get a fair hearing, they go through an appellate process, they go up to the Supreme Court of the United States, if that's required.

Of course he's not troubled. Of course he never struggles with the thought that he oversaw the execution of anyone who shouldn't have been executed. Oh, they have a great system. As Cameron Todd Willingham will tell you. I'm sure Hank Skinner would have great things to say about the Texas criminal justice system. Or the guy whose defense attorney slept at trial.

And then he spouted off about how anyone comes into HIS state and kills one of HIS STATE'S children, you will be executed. And he gets more applause. Such a sorry, disgusting display. And so very not presidential.

I have a hard and fast rule. I do not blog about my own cases (except the occasional generic anecdote about cases long since resolved). I also do not comment on news articles about my own cases or cases I expect might become mine. But, of course, I'm me, so I still read those news articles and I still have things I want to say. Sometimes things I'm DYING to say. Not about the facts of the case, necessarily. But about some procedural aspect or some quibble with a line in the article, for example.

As you have probably caught on, I have a rather raging case of "Something is wrong on the internet"-itis. Sometimes, I see something that really deserves some blog attention. It's a pretty obnoxious misstatement, even egregious. But I won't blog about it. I'll just whine about not being able to blog about it.

Cases like this really do happen

In case you weren't clear, it is in fact not a crime to walk in Kansas City, Kansas while black. But it took years to reach that conclusion. And 4 judges ruled otherwise before the Kansas Supreme Court finally said so. The case is State v. Johnson.

It all started when members of an FBI Task Force on violent crimes went to look for Shane Thompson. None of the task force members knew the suspect, but they had a description of a short man (5'2") with short hair and facial hair. They went to his mother's house, hoping to find him. But no luck. So there the Task Force was, all dressed up and no one to cuff. They hate it when that happens.

But, then, like manna from heaven, there they were! Two black men! In a predominately black neighborhood. With short hair and facial hair. Five blocks away from the suspect's house. And each was at only 7 or so inches taller than the guy they were looking for! One of them must be their guy! Because what are the odds of black guys who weren't the least bit connected with their guy just walking down the street 5 blocks away? (Umm, pretty good, actually...) So the Task Force circled its multiple cars around the pair and exited their cars. Lights flashing, guns drawn. These two were seized and most definitely not free to leave. In that moment, those two were probably just hoping they weren't going to get shot.

Of course neither of these guys, 5'9 and 5'11, were the guy. But since this is a criminal case, you know our unlucky defendant, Mr. Johnson, must have done something. Poor guy had some pot and coke on him. Drugs police only found because of this blatantly illegal, racist stop. But the District Attorney's office didn't have a problem with the stop because they filed the charges and defended against the motion to suppress. And the District Court judge didn't have a problem with the stop because he denied the motion to suppress and sentenced the unlucky defendant. And the Court of Appeals, remarkably, did not have a problem with the stop because they affirmed the District Court's ruling. One might forgive Mr. Johnson if he was starting to suspect that the Fourth Amendment's prohibition against unreasonable searches and seizures doesn't apply to black men in Kansas City, Kansas.

But then the Kansas Supreme Court stepped in. They didn't have to, but they granted Mr. Johnson's petition for review. And finally, FINALLY, we found some judges willing to say they had a problem with this stop. They said what all the rest of us understand, that looking for a 5'2" black man does not entitle you to seize the first black men you see. In a delightful twist, the Task Force members tried to justify their stop because the  information they had about the man's height may not be reliable. So it was reliable enough to justify stopping someone, but not reliable enough to restrict the police to seizing only men who fit the description. (The Kansas Supreme Court seems to have been the only lawyers, other than the defense attorneys, who noted this logical flaw in the task force's justification of reasonable suspicion.)

There are so many things about this case that are appalling. The brazenness of the Task Force's actions. They just flat stopped the first black guys they saw, with very little pretense at justifying their actions. Then there's the DA who didn't see the police report and immediately think, "I can't prosecute a case built entirely on such  a blatantly unconstitutional seizure!" Or the District Court Judge who didn't laugh the state out of court, granting a motion to suppress before the defense attorney could open his mouth. Or the Court of Appeals who affirmed this travesty.

Obviously, I'm pleased that the Supreme Court did overturn this case, rule the suppression motion should have been granted, and reversed Mr. Johnson's convictions. He already had to serve most of his sentence, of course, but I guess better late than never. But would it have killed the Court to have expressed a little outrage? Because this case is pretty outrageous. And 2 courts had no problem with it. Happily, for Mr. Johnson and, one hopes, other nondescript black black men in Kansas City, Kansas (and Wichita and Topeka) the 3rd Court was the charm.

Missouri, why must you always make it so easy for me to pick on you?

In case you were wondering why I maintain that Missouri is the worst state in the country, I offer you Exhibit B (Exhibit A will always be that 148 years ago, they burned our town down).

Missouri lawmakers seek to end tax break for poor

Poor disabled and elderly folks in Missouri who rent housing are now eligible for a tax break to help cover that rent. But Missouri legislators would rather end that tax break and offer new corporate tax breaks that would lure Chinese cargo planes to St. Louis and other businesses to Missouri. And, really, those disabled and elderly folks have been coddled enough. Those Chinese cargo plane manufacturers need the love now, so the poor renters on fixed incomes need to suck it up and fend for themselves. Mooches.

It's really not fair that a city as awesome as Kansas City is stuck being part of that wretched, wretched state.

She did it once, she's done it again

Remember that Harvard-educated Alabama professor who went nuts and shot up a department meeting? Well, her case is still pending. And after Amy Bishop allegedly went on her shooting rampage, the media naturally started digging into her past. It didn't take long to figure out that over 20 years ago, she had been holding the gun that shot and killed her brother. I say it that way because the conclusion at the time was that it had been a tragic accident, that while she had been holding the gun trying to unload it, it had accidentally discharged, killing the brother.

Of course, hindsight is 20/20, so once she was accused of a murderous gun rampage, authorities in her hometown in Massachusetts decided to reopen the investigation, held an inquest, and got a grand jury to indict her on first degree murder. It's easy to ascribe different motivations to her actions decades ago now that we can see she's a homicidal maniac. Allegedly.

This story came back to my mind the other day when MSNBC had a story about litigation over whether the transcripts and investigatory materials from the inquest are now available to the public. The judge has sealed them because a trial is still pending, but the media is suing for access, arguing that state law makes those records public once an indictment has been handed down. The defense, naturally, is arguing that releasing all of that information now, before trial, will prejudice her right to a fair trial.

The media, though, is arguing that they have a compelling interest in those materials because they want to find out what happened in the allegedly botched investigation 24 years ago. As the Boston Globe's metro editor said, "There was a crime that was committed here, and there were decisions made back then that may have potentially contributed to a tragedy in Alabama. I think the public has the right to know if officials did something wrong and what the mistakes were that were made."

I do not see this ending well for Amy Bishop. By this, I mean only the Massachusetts case. (Does anyone see the Alabama case going well for her?) But I'm troubled by this new investigation into a 24 year-old shooting incident, this new perception that clearly a "crime" occurred back then and we need to find out why the authorities missed it. The thing is, though, that nothing has really changed since that investigation was closed over 20 years ago. Nothing except that Bishop has been accused of shooting some other people in an incident completely and totally unrelated to the death of her brother. So if she intentionally shot these people over here, she must have intentionally shot this other person before. (I, personally, might have gone with, gee, maybe she was really messed up after accidentally killing her brother. But I'm a bleeding heart liberal defense attorney.)

A hot topic in criminal law is always when the prosecution can introduce evidence of other bad acts committed by the defendant. In Kansas, we call this 455 evidence, after the statute governing its admission. Our general rule is that evidence of other bad acts can only come in if it's relevant to a material, disputed fact and it's more probative than prejudicial. 455 evidence is not admissible to prove a defendant's disposition to commit a particular type of crime. This is considered propensity evidence. The idea being that we don't convict people based on what they've done at other times. The fact that a person committed a crime before doesn't actually have any bearing on whether the defendant committed THIS crime at this time. But people tend to think that way, so it is important to keep juries from going down that path by hearing about irrelevant prior criminal activity.

It seems to me that Bishop is falling victim to propensity evidence. No one would ever have reopened the old case if she hadn't been involved in the new one. The investigators and prosecutors are now looking at that old case through the lens of "she intentionally shoots people." They're now saying she has a propensity for this kind of behavior. She did it here, she must have done it there. An editor for the Boston Globe is taking it as a given that a crime occurred in that prior shooting, even before a trial jury has heard any of the evidence at a trial that is meant to decide that very question. And all because we know (allegedly) that Bishop intentionally shoots people.

I hope Bishop can get a fair trial on the Massachusetts case, where the jury and judge consider only the facts surrounding the shooting of her brother instead of making the easy, but flawed, deduction that she intentionally shot those people in Alabama (allegedly), so she must have intentionally shot her brother as well.

My prejudice

Like so many women in the last century and a half, I grew up on Pride and Prejudice. My mother had a glorious old hardback edition that was just this side of falling apart. I love a book that is just this side of falling apart because I know it has been read and read and read.  We watched it, too. When I was a kid.

If you do your math, it should be clear that if I was watching Pride and Prejudice when I was a girl (I'm 38 now and I have nothing to hide), it was before the Colin Firth-Jennifer Ehle version from 1996. I had graduated from college before that version came out.

No, I grew up on the earlier BBC version. The one that we Johnson gals (my mom, my sister, and I) still think of as the definitive version. I grew up on the 1980 BBC tv miniseries. I grew up on a version with a delightful Elizabeth and a truly beautiful Jane and a Darcy whose haughtiness was easily seen as awkwardness once we later realized his inherent goodness. My version had a Mrs. Bennett who was annoying, but in an endearing way such that you could understand why Mr. Bennett fell in love with her when she was younger. And a Lydia who looked just like she was the spitting image of her mother at that age. And a Lady Catherine who was stately and imperious. (Mary and Mr. Collins are pretty consistent from version to version. Those characters are hard to mess up or deviate from.) My version was so true to the book and so true to the characters and so perfectly cast. We watched it over and over again, off of old VHS tapes that my mom had recorded it on. (These days, we all 3 have it on DVD.)

So in 1995-96 when Mom and my sister and I heard the BBC was making a new version of Pride and Prejudice, we all looked blankly at each other and asked, "Why?" Because the BBC had already created the definitive version. The perfect version. A version that would outshine all future versions.

Imagine my consternation, then, when almost all of my friends consider the Colin Firth version to be THE Pride and Prejudice. It aggravates me beyond measure. But none of them have ever heard of my version. They look at me like I'm nuts when I say there was an earlier BBC version. "No," they insist, "This is the only BBC version." Sigh. One by one, I try to show them my version, the better version. But I fear Colin Firth with his "Love Actually" credentials (wretched movie) and the shinier BBC production values of the mid-90s as compared to 1980 has them blinded.

The truth, though, is that the Colin Firth version is so ridiculously inferior to my version, it isn't even funny. Why, the Colin version adds in scenes that never happened in the book. (Seriously, Mr. Darcy never fell into a pond...) And their Jane is not pretty. But the ONLY thing Jane truly has to be is pretty. And their Lady Catherine is dowdy. And here it comes to the heart of it. Their Elizabeth Bennett just isn't right. And their Mr. Darcy... Well, it's time to admit it. Their Mr. Darcy sucks. Yep. Colin Firth as Mr. Darcy sucks. He's a one-note, with no range in his expression and no warmth. And he's not nearly as good looking as my Mr. Darcy. David Rintoul is the only Mr. Darcy for me.

So friends can keep trying to get me to watch and appreciate the atrocity that is the 1996 Colin Firth version. But I will never be swayed from my conviction that the earlier version, MY version, is the one true, definitive production of that greatest of books. So there.

I might just pop it in right now, even though it's midnight. Just to remind myself of how those characters were meant to be portrayed.

Things that everyone (but cops) knows are legal #1

Here's some good news. The First Circuit Court of Appeals has held (acknowledged, really) that it is perfectly legal to record police officers in the performance of their duties. Over the past several years, there have been numerous instances of people on the streets pulling out their smart phones and recording instances of police brutality or excessive force. Or even just regular old police encounters, just to ensure that the encounter didn't go south. With the proliferation of these recordings has come a rise in cases where police arrested the person doing the recording. Charging them with eavesdropping or other violations, alleging that it's not legal to record people without their permission. The linked blog post cites several examples, including one where Illinois prosecutors are still trying to incarcerate an individual for up to 75 years. (For more examples, check out The Agitator, Radley Balko.)

Here's my question to all these cops and prosecutors who try so hard to intimidate the public into not recording police officers on duty: What are you afraid of? What are you doing wrong that you don't want the public to see and have indisputable evidence of? It seems to me that police ought to appreciate having recordings of their encounters so they are protected against false claims of brutality. Since they're all so professional and never violate anyone's constitutional rights, I just can't imagine why they would object to having their job performances recorded for posterity.

If we don't get in trouble for doing it, is it really misconduct?

Of course. Of course Roger Clemens will have to face a second trial even after prosecutors engaged in shenanigans that ended his first trial. (Read my previous post to refresh your memory about the shenanigans.) And it would appear that prosecutors won't have to pick up the extra legal fees he will incur by this case being dragged out because of those shenanigans. The judge says he has no choice. Legal commentators say it's absolutely the correct ruling. That the "mistake" was inadvertent. That it would be a "windfall" for Clemens to have the case dismissed. The judge did apparently express extreme displeasure with the prosecutors, gave them a bit of a tongue-lashing, but then he whipped out his calendar and scheduled the second trial anyway.

And this is why prosecutorial misconduct keeps happening. Because there are no consequences. Because courts and court watchers refuse to question prosecutors when they say, "Oh my golly, we don't know how that happened! We feel just awful about it. Sorry!" So they think they can do these things. They know they can get away with it, so why not try it and see if we just can't sneak something past the defense and the court.

Now whether these particular prosecutors intentionally left the snippet of video in the exhibit they were playing for the jury or just forgot, I can't say for sure. But it doesn't seem terribly likely that these prosecutors, who the court knows to be "highly professional career crime-fighters," just forgot to redact their video. Forgetting to check a major piece of evidence for any possible violations of pre-trial court orders doesn't seem  highly professional to me. The linked legal commentary on ESPN also makes much hay about how experienced these trial lawyers are and how they wouldn't be thrown by last minute discovery. Which also means they shouldn't have been thrown by a pre-trial court order issued only days before trial began. They should have reviewed their evidence and made sure the evidence complied with court orders. We either have to believe these highly professional lawyers just didn't think to do that or that they just didn't do it, taking a calculated gamble that they would get a defense objection, which would of course be sustained, but which would guarantee that the jury heard that piece of evidence and remembered it. (Yes, the judge would have instructed them to disregard, but please, who are we kidding to think juries really can do that?)

Given those choices, courts almost always defer to believing the experienced, professional prosecutors innocently lost all sense of how to prepare for trial. Which makes me nuts because, frankly, I'm not all that convinced it should matter. They screwed up, but Roger Clemens still has to pay for it. He has to pay for more hours of trial prep and trial presence by his lawyers. He has to fret for another several months about his future. And the prosecutors involved in the case face no consequences at all. There won't be any disciplinary complaints for their "mistake." They won't personally bear the financial burden of extending the trial to next year.

I wish I had a dime for every time I have heard a prosecutor say that such and such behavior is not misconduct even though in case after case, the appellate courts have found that behavior to be improper. The appellate courts just decline to find that misconduct to be reversible error. The courts say that while the prosecutor shouldn't have made that comment or asked that question, it didn't actually affect the outcome of the case, so we won't reverse. Which is why prosecutors feel perfectly free to make those comments or ask those questions because they feel so confident that they will get away with it yet again.

The way courts now treat misconduct is about as useful as it is to say "no" to a puppy in a baby-talk voice while scratching the puppy behind its ears. The dog is going to think that doing that thing you're "scolding" it for is something it should do again and again because being scratched behind the ears feels so good. If you really want to stop prosecutors from trying to sneak in the evidence you ruled inadmissible or from making the closing argument you say is improper, you need to impose consequences. Real consequences. Not just words while wagging a finger. And holding prosecutors accountable for their misconduct is not granting the defendant a windfall. It's simply acknowledging that process matters, that the rules matter. If you can't (or just won't) play by the rules, you shouldn't be allowed to keep playing.