Oh, hell yes!

Remember this charming incident? Happily, the powers that be in Texas have decided that conducting utterly unjustified, totally visible to all cars on the highway, criminally invasive (as in would-be-called-rape-if-I-did-it) cavity searches is a fireable offense for a highway patrol officer. Huzzah!

They had to fire this officer. There could not have been any recourse short of that. (Although I wouldn't object if someone took me seriously on the digital penetration of the female sex organ angle.) The powers that be had no choice but to send the message to all their officers that this conduct is unacceptable. Except calling it merely unacceptable puts it in the category of sending off-color emails at work or letting a date drive your patrol car. Roadside, warrantless cavity searches need a whole different category. (Like criminal?)

No word yet on the other officer involved, the male officer who initiated the stop. He didn't conduct the actual search, but he sure didn't stop it, which is often enough held against my clients to make them as liable as the actual perpetrator. The articles indicate that the male officer called the female officer to conduct a search. Now, I guess he could have intended something less invasive, but surely he didn't call a female officer just to do a pat-down. He must have had something in mind. I think he should probably get the boot, too.

I don't relish the idea of people losing their jobs. It would be financially devastating for most people. If it's a job you love, it would be very difficult to be fired in such a way that it could very likely be career-ending. (I can't imagine it will be easy for this woman to get another law enforcement job with this on her record.) So, I get that it's a big thing and must really suck for her. But it was absolutely deserved and I do relish seeing anyone involved in law enforcement, whether cops or prosecutors, being held accountable for such gross misconduct. Turning a blind eye or just issuing a slap on the wrist would have been unacceptable. No, it would have been worse.

Yikes, don't get raped in New Mexico

A State Representative in New Mexico has made quite a name for herself this week. Yesterday, Cathrynn Brown introduced H.B. 206, which would classify an abortion procured for a pregnancy that resulted from rape or incest as tampering with evidence. Per the bill:

Tampering with evidence shall include procuring or facilitating an abortion, or compelling or coercing another to obtain an abortion, of a fetus that is the result of criminal sexual penetration or incest with the intent to destroy evidence of the crime,

That "procuring" language is what caught a lot of peoples' attention. The plain language of that proposed bill sure makes it sound like a woman who voluntarily had an abortion (aka procured an abortion) after being raped or being the victim of incest would be committing a third-degree felony punishable by up to 3 years in prison. Naturally, a lot of people weren't big fans of the idea of turning rape victims who choose abortion into felons.

Actually, it could include the doctor or anyone else who helps the victim get an abortion, couldn't it? Facilitate is pretty broad.

When I first read the story, I understood why people found the language alarming. But I was also pretty sure I knew what the representative was trying to get at. Today, she issued a statement explaining exactly what it was she was trying to accomplish. The goal of her proposed legislation is to penalize the rapist who would compel or coerce a victim into having an abortion.

A couple of things.

1) Isn't compelling or coercing a woman to have an abortion against her will already illegal? Like battery or something?

2) If it really isn't already covered, shouldn't it be criminalized under some theory other than "tampering with evidence?"

3) How often is the fetus itself really the evidence used in a rape case? The evidence is semen from the rape kit, the victim's testimony, etc. To the extent that an incest prosecution can't go forward without a paternity test from the fetus, that's a poor excuse for forcing a girl to carry to term a pregnancy that her body and/or emotional state can't handle.

4) Brown is endorsed by Right to Life organizations. This naturally raises suspicions when she proposes any legislation targeting abortion. Over the past couple of years, more anti-abortion legislation has been proposed than ever before. The angles are becoming more and more creative, less obvious. And they're all proposed by people who claim only to have deep care and concern for women in mind. So forgive me for wondering if Brown's ulterior motive in proposing this bill is really to stop as many abortions as possible. That motivation would certainly explain her carelessness with the proposed language. If you're focused on stopping as many abortions as possible in whatever way possible, you might not notice that you're turning rape victims into felons for not wanting to carry their rapists' babies.

Fortunately, Brown's careless language has received enough national attention, I don't see how the bill can pass as it currently stands. As it shouldn't.

No Facebook for you!

Judges and legislators love to be tough on sex offenders. As a group, sex offenders are about as reviled as they come. Over the past two decades, policy-makers have come up with more and more ways to isolate sex offenders who are not subject to the physical isolation of prison. We make them register with local authorities and have made that process progressively more onerous and expensive with each year. In many cases, we've made the penalties for not registering correctly or at all far worse than the penalties for the initial sex offense conviction. We've ordered them not to turn on their lights on Halloween so children won't come trick-or-treating. They're  not allowed to dress up like Santa. They can't live within so many feet or yards of a school or a park or a day care. There are some parts of this country where the only place sex offenders can live is under a bridge. Literally. As it's the only spot not within the prohibited distance of a prohibited facility.

But Facebook is a bridge too far. According to the 7th Circuit Court of Appeals anyway. In 2008, Indiana passed a law prohibiting registered sex offenders from using Facebook or other social networking sites. (No Goodreads?!) The three judge panel found the ban to be overbroad and therefore unconstitutional. While states can restrict speech through content neutral laws if the restrictions are reasonable as to time, place, and manner of speech. But the restrictions must be narrowly tailored. That is where this law failed in the eyes of the panel. Most of what happens on Facebook is entirely innocuous communications, they say. This broad ban is kind of like bombing a house to kill a spider. And since it restricts people from engaging in communications (aka speech), the complete ban that is not narrowly tailored to address a legitimate state interest runs afoul of the First Amendment.

In Indiana, registered sex offenders are already prohibited from engaging in improper communications with minors. There's no reason to think that Facebook or Google+ or other similar sites are such hotbeds of inappropriate activity that all registered sex offenders should be totally banned from participating at all, even to like their favorite movies or read about their aunt's sinus surgery. So, Indiana Legislature, all you did here was waste the time and money that went into passing this law. And there was time and money put into litigating this lawsuit. All because you wanted to be as harsh to sex offenders as you could, and isolate them as much as possible. Maybe instead of just passing whatever damn fool idea someone comes up with to further push sex offenders into social exile, legislators should start to be a little (no, a lot) more thoughtful about how to deal with sex offenders. For starters, let's try to identify the real, actual, legitimate public safety concerns instead of tilting at every bogeyman windmill anyone can think of.

Is stealing God's money worse than stealing mine?

In North Carolina, a judge sentenced three men to 53 to 71 years in prison for 11 counts of robbery. For just about anyone, not even being eligible for parole for at least 50 years has the same effect as a life sentence. Odds are none of the three will get out.

In arriving at this long sentence, the judge made note of the scene of the crime: a church during Sunday service. According to the judge, "You didn't just steal money from people. You took God's money. You took the Lord's money."

Naturally, the men appealed their sentences as high as they could. (They couldn't appeal their convictions because they pled guilty.) Appellate courts refused to remand the case for new sentencing because the sentences were within that allowed by law, though the Fourth Circuit Court of Appeals did note that judges should probably avoid the perception that they're using the bench as a pulpit.

Well, gee, that's great, 4th Circuit. But can I speak as a homeowner whose home has been burglarized here? Let me assure you that if I heard the guy who busted into my home got a lighter sentence than guys who broke into a church, I would be quite put out. God's money (whatever the hell that is) isn't worth more than mine. The sanctity of a church isn't somehow greater or worthier than the sanctity of my home. In my view, stealing my grandmother's ruby necklace is way worse than stealing anything one could find at a church. And breaking into a person's private home is more of an invasion than breaking into a non-residential building. See how this can go, Mr. Sentencing Judge?

The whole point of the sentencing guidelines my state has gone to is to remove this kind of favoritism in sentencing. The "my offering plate money is worth more than your piggy bank coins" treatment of cases isn't fair or just or right. We all have our own inherent biases, but a sentencing judge should be aware of his or her biases and should do everything possible to prevent those biases from affecting a sentencing decision. This sentencing  judge may have issued a sentence that is legally allowable, but his words trouble me. If nothing else, maybe this judge will learn from all of this that he should be a little more thoughtful about what he says to explain his sentences. And if he realizes he wouldn't have sentenced the same had the crime scene been an Islamic mosque or a Buddhist temple, then we can hope he will learn not to let that bias affect him the next time.

Does law school need to be fixed?

The legal profession has taken a hit over the past few years. When the economy takes a big downturn, law firms are as affected as anyone. Hiring freezes, lay-offs, firms closing their doors. Naturally, the people hardest hit are the newbie lawyers, fresh out of law school.

For a couple of years now, I've been hearing a lot of friends and acquaintances bemoaning the fact that they ever went to law school. They're deep in law school debt but unable to find those high-paying jobs that were supposed to be the key to paying those school loans. I've seen more than a few Facebook posts urging people not to go to law school. (Though they all agree that my only choice was to go to law school and become a lawyer. They just don't think most people should follow that path.)

So now with law school enrollment down, law schools are looking for ways to beat out other schools for the most students. Today I saw two articles with interesting proposals for changing the way people become lawyers. Law school is typically a 3 year program, coming after a 4 year undergraduate degree. The University of Kansas has announced a new program that will enable an incoming undergraduate student to cut a year out and get both degrees in only 6 years. Then the New York Times proposed allowing law students to take the bar exam after only 2 years. If they pass, then no more law school. If they don't, no problem, just go back for that 3rd year.

These are interesting ideas that might work for some students. Goodness knows, anyone who isn't a millionaire would love to save a full year of law school tuition. I would generally agree that the stuff that is on the bar exam tends to be the stuff you study your first two years of law school, while the 3rd year involves a lot more elective study. Personally, I loved law school and would have very much missed out on that 3rd year. Some of my favorite classes were those elective seminars on more diverse topics. But I know a lot of people would have been just fine skipping that year and getting straight to the practice of law. My concern, though, is that we already don't spend enough time in law school teaching people how to actually be lawyers. Cutting that year of school out means it's the clinics and the internships that will go. People will be so busy taking courses necessary for the bar exam, they won't even get to a trial advocacy class.

The KU plan likewise might well work for some students but probably wouldn't have been ideal for me. While I was destined to be a criminal defense attorney and knew that for decades, I wasn't ready to a) attend a giant state university for undergrad or b) go straight from undergrad to law school. I took several years off between college and law school and was a much better law student for it.

I'm also a little worried about how my beloved Wisconsin will fare if other law schools or states start cutting out some years of school as long as people can pass the bar. One of the nicest perks of attending law school in Wisconsin is that you don't have to take the bar. The state still has a bar exam, but people who graduate from either the UW or Marquette University (in Milwaukee) and who satisfy the specific bar requirements do not have to take that exam. I wonder how many Wisconsin law students would be willing to take that damn test if it meant they could get out of the last year of law school. Of course, idiots like me who took jobs outside of the state still had to take a bar exam anyway, so it's not like we Badgers all went through school bound and determined never to take a bar.

Bottom line is I'm glad I graduated from law school a decade ago and am well-established in my career. I'd hate to be trying to break in now. I'm also glad I'm not a professor, clinical instructor, or law school administrator whose livelihood depends on figuring out how to attract as many law students as possible. I'll just watch all this unfold, watch as more proposals like this are made, from the safety of my law-license-having, good-job-holding ivory tower.

Perhaps a little perspective is in order

Last week, the US Supreme Court heard oral argument on a DUI case out of Missouri. The issue is whether police officers can draw blood from DUI suspects without a warrant. Missouri allows it, but of course, the Fourth Amendment is the supreme law, so if SCOTUS says it's not ok, it won't be ok.

Missouri's claim is that exigent circumstances justify not following the warrant requirement. Exigency is a well-established exception to the warrant requirement. Like if cops hear gunshots or screams from inside a home, they don't have to dither around and wait for a magistrate to sign off before they can enter. (I'm ok with that one.) Or if it sounds like the suspected druggies are flushing their stash down the toilet. Or if the suspected crime scene is a car that can drive off. Lots of circumstances have been found to be exigent enough that cops needn't wait for a warrant, so it's no surprise that Missouri would think blood alcohol levels dissipating over time would qualify as exigent.

But a funny thing happened during the argument. The attorneys and justices kept coming back to the question of how long it would take to get a warrant: 20 minutes? half an hour? two hours? They were at times trying to parse how much time is reasonable to make cops wait to try to get a warrant. And all I could think was how the folks who wrote the Fourth Amendment and/or insisted on adding it to the Constitution before ratifying that document would laugh in wonder at the idea that we could get a warrant in under two hours. The idea that a prosecutor and magistrate could be reached and act on a warrant application in 20 minutes would sound like science fiction to people from an era when the magistrate only made it to your town once every three months. So the idea that having to wait a whole hour or two is so unbearably inconvenient that it demands ignoring the warrant requirement would have to be offensive to those original proponents of the Fourth Amendment, wouldn't you think?

Do juries hate fat, female defendants?

I saw this story on Slate and was curious. There are so many questions I have about how this study was done, what tweaks to the study could reveal, and what it really means. According to a team of Yale psychologists, the short story is that men are more likely to find fat women guilty than fit women. It boils down to fit, thin women being better perceived (especially by men) than overweight women. The study asked subjects to judge people on a charge of check fraud. The male subjects tended to find the fat women guilty, not the thin women.

So many questions. The headlines just blast that fat women need to watch out, 'cause men will find them guilty more often than not (when they're charged with the fairly lazy, non-labor-intensive crime of check fraud). And to the extent that this study reveals that men are likelier to assume that fat women are guilty of check fraud than are thin women, sure. It is disturbing to think that men are more willing to assume that fat women possess criminal intent than do thin women, at least as to this non-labor-intensive property crime. But I want the researchers to change the charged crime. As it stands, can we really assume that men generally assume fat women are guiltier than fit women? Or is that only when the crime involves stealing in a somewhat lazy way? I could understand some connection between a wrong assumption that fat women are lazy meaning they are connected to "lazy" crimes like check fraud. (As compared to a more active crime, like actual theft from a person or robbery, something that involves a physical confrontation.) Offensive as the perception that fat = lazy is, I do acknowledge that it exists. I wonder, then, if that's what this study is revealing, that people perceived as being lazy commit lazy crimes.

What if the charged crime isn't a property crime, a crime that doesn't involve any physical labor? Instead, what if the charged crime does involve some kind of physical work? Does the fat woman/thin woman bias still exist? What if the crime involves a person crime, like battery or murder? Are men still likelier to find a fat woman guilty than a thin woman? Or does the perception change, that a thin woman is likelier to commit a crime that involves some kind of physical activity? What if it's a drug crime? Child abuse? A sex crime? Or would the results be the same, no matter what the charged crime? Are men just big, dumb jerks who assume the worst about fat women while giving thin women the benefit of the doubt?*

I've no doubt that jurors engage in physical/racial/ethnic/gender stereotyping of defendants, at least to some degree, no matter what the charged crime. There's a reason all defense attorneys want to dress their clients up in nice clothes and have presentable family members in the courtroom. Perception matters. To the extent that this study reveals any trends, it's useful. But, man, there has to be a whole lot more we can divine.  So, researchers, get back to work. Tell me what other biases I need to be prepared to face from potential jurors. Because I haven't had a check fraud case in a long time.


*in the interest of full disclosure, men aren't my favorite people right now, so I can't quite dismiss the "men are just big, dumb jerks" theory. :) At least I acknowledge this bias in myself.

Split Hair Sarah, that's me

Have I ever told you what my childhood nickname was? Split Hair Sarah. I have always been a particular person. I like to be precise with my language. I have always kept a dictionary nearby so that when I question which one of two words is a better choice, I can make the best choice possible. (So how happy am I to have a smart phone complete with the dictionary app?) I suspect I was a bit of a nightmare for my parents when they were the least bit loose with their words.

I am kind of a stickler for the rules. I think form matters. I want things to be done right. It is important for things to be done right. Some people find my stickler-ness to be annoying. (I find those people to be annoying.)

This quality of mine makes me uniquely qualified to be a defense attorney. When it is necessary to argue that a particular rule wasn't followed to a T or that the use of the word "any" makes a statute mean something different than it would if the legislature had used the word "a," I'm your woman. I will make those arguments with a completely straight face and I will convince people in the way that only people who truly believe what they're arguing can convince people.

But where I fall down is when there are cases that I'm not involved in that don't go right. I read the stories in the paper or watch the news coverage and see the ways in which other lawyers messed up. And I go a little bit nuts. I want to fix everything. I want everything to be precise and correct and 100% accurate. It makes me absolutely crazy when things aren't quite right. Even in ways that no one else perceives as being wrong. I am and will always be Split Hair Sarah. And I need things to be totally and completely correct.

Why, why, why don't all the other lawyers people in the world care as much as I do?

Well Done, Marines.

Between the end of Don't Ask, Don't Tell and the rise of legal same-sex marriages, there's a new group of people wanting to join the family and spouse groups that exist on US military bases around the globe: the same-sex spouse. Evidently, not every spouses' club out there is thrilled with this new development. Back in December, such a club at the Army's Fort Bragg refused to allow the female spouse of a female Lt. Col. join. I keep envisioning poor Rudolph being kicked out of the reindeer games.

Well, the Marine Corps is having none of that. From the top down comes the order that spouses' clubs at every Marine base had better accept same-sex spouses if those clubs want to continue operating on base. Amen to that.

Fort Bragg and the Army have yet to take any action to address the exclusion of same-sex spouses. Here's hoping the Army and all other branches of the military follow the Marine Corps' lead and make it clear that same-sex spouses are to be included in any clubs or organizations that receive support from the armed forces. That the military itself was allowed to discriminate against gays and lesbians for so long is a disgrace. We have fortunately put that ugly era behind us. Let's not allow some residual discrimination to linger around the edges by tolerating intolerant family organizations and spouses' clubs.

The Fourth Amendment lives in the Bronx!

For a while now, police in New York City have targeted particular buildings in high-crime neighborhoods in the Bronx. Police basically stop anyone they want to outside these buildings. The claim is that these buildings are subjected to lots of trespassing, so they stop people the police think might be trespassers. But really, they're looking for drug dealers, gang members, and your basic criminals. What it comes down to is they're stopping lots and lots of black men. Honestly, if these police saw me outside one of these buildings and approached me, it would be to make sure I was ok and offer me a ride home because I must be lost.

This stop and frisk program has been for years. As you might imagine, people like me decry the program as a blatant violation of the Fourth Amendment. Law enforcement swears it's necessary to curb crime rates. At least 3 lawsuits are currently pending challenging the stops.

Yesterday in the first of these lawsuits, a Federal District Court Judge agreed with those of us who hate these stops and issued an injunction against these unjustifiable stops. I'm a tad curious what the enforcement mechanism and remedy for violations of the injunction would be. After all, the finding is that the vast majority of these stops are already a constitutional violation. (Something like 87% of these stops didn't even lead to an arrest, which suggests that police really don't have much cause for stopping these people. Of the other 13%, an awful lot of those cases get tossed out of court anyway.) So how does an injunction really change things since cops already shouldn't be stopping these people? I hope I'm just being too cynical here and that the NYPD really will respond to this injunction by suspending the program until there is a final ruling. (A final ruling that, I hope, will affirm this court's findings.)

The NYPD should stop this program. I don't care that they think they're trying to combat a serious crime problem. They don't get to just ignore the Fourth Amendment or suspend it in high crime areas. You can't just stop people who are walking down the street. Can't demand to see identification and expect explanations for people's comings and goings. Even in the worst neighborhoods of the Bronx.

WND never fails to entertain

In the category of "Dumbest Thing I Saw On the Internet Today" comes this:

According to WorldNetDaily and some random Christian football fan in the world, CBS hates Christanity and loves, loves, loves the gays. And they're big meanies who mock Christians. And why?

Because CBS is the Super Bowl network this year, so while airing the Indy-Ravens game yesterday, the network aired some promos for the big game. (As if you have to advertise the Super Bowl because people might not watch? But I digress.)

The Christian-mocking promo? It involved Neil Patrick Harris, one of CBS' most beloved stars, wearing eye black, as football players do. In the eyeblack was a message. Under the left eye "Feb 3" and under the right "2013.) Which is the day of this year's Super Bowl.

So outrageous, isn't it? I mean, it's so obvious! They're clearly pushing a gay agenda by using an openly-gay actor in the promo. It couldn't possibly have anything to do with him being a popular star on that network. Who, btw, has previous experience doing jokes with the network during their Super Bowl year. (Last time CBS had the game, his character, Barney Stinson, was shown during the game holding up a sign with his phone number, which then led into the next episode of HIMYM.) But, no! The network's selection of Neil Patrick Harris necessarily means they are pushing a gay agenda because, well, he's gay. And that's it. Obviously, merely associating professionally with someone who is gay means CBS is actively, even aggressively, promoting a radical, far-left, pro-gay agenda.

Of course, it's also deeply mocking of Christianity. How's that, you ask? Because of Tim Tebow, of course. Tim Tebow loves to put messages on his eyeblack. He always writes a bible verse. So obviously promoting the Super Bowl by writing the date of the event in eyeblack is mocking Christians, not just Tim Tebow but all of 'em!

Good grief. I find it ridiculously humorous that people have the time and energy to come up with this nonsense. I think this particular website is better than The Onion when I need a good laugh.

Let the cold and allergy sufferers have Sudafed!

So you know how states have made it really annoying now to get sudafed? You can't just buy it OTC, but instead have to give your license over to the pharmacy and have your purchase registered. Which means if you're suffering at midnight and don't live near a 24 hour pharmacy, you're screwed?

Yeah, turns out those laws have done bupkis to combat methamphetamine use. For a while, Mexican manufacturers filled in the void, but eventually American makers just figured out new ways to make meth with less psuedoephedrine and more crazy chemicals. People are still making and doing meth. But these laws have sure inconvenienced cold and allergy sufferers. Like me. Since 1992, I've been under doctor's orders to take sudafed daily. No one wants to share a bedroom with me if I don't have my sudafed. On my really good, clear-breathing days, people still always think I've got a cold. Well, I don't. I just have really crappy sinuses that require daily doses of antihistamines, nasal spray, and sudafed. I've tried that other decongestant, the one you can still get OTC, but know what it does for my sinus issues? Bupkis.

So can we maybe rethink these laws now? Put pseudoephedrine products back on the shelf of things a sad sack like me can run out to the store for at any time of the day? Allow us to buy it in bulk again? (The biggest package is 96 pills. I take 2 at a time. I often take more than one dose per day. I go through that stuff fast.)

I'm probably dreaming that we'll loosen up on the pseudoephedrine laws. And it's not really that big a deal, I know. (Though I am always wondering in the back of my mind if anyone's ever going to think I buy too much of the stuff.) It's just annoying. I don't like having my purchases recorded and monitored like that when all I want is to breathe through my nose.

Know what a Constitutional speedy trial violation looks like?

The right to a speedy trial is one of the fuzzier Constitutional rights. There is no set time limit, no magic formula for establishing when the right has been violated. Instead, there are factors to be weighed against one another. The lead case on the speedy trial right is Barker v. Wingo, from 1972. The four factors for a court to consider are:

1) the length of the delay
2) the reason for the delay
3) the time and manner in which the defendant has asserted the right
4) the degree of prejudice the delay has caused to the defendant.

The Supreme Court has never ruled that a specific length of time equals an automatic violation. Instead, it's a case-by-case analysis. You might even find a judge or two who would rely on that old fall-back line of I can't say what a speedy trial violation is, but I'd know it when I saw it.

Well, I'd like to think there aren't many judges who wouldn't look at the sad, strange case of Jerry Hartfield without saying, "Yep, that's it."

Jerry Hartfield has been in prison for over 30 years. But as of 1980, his murder conviction was overturned. He hasn't been retried since. In 1983, the governor commuted his death sentence and everyone apparently forgot about the case. Apparently, it didn't faze anyone that not only was there no death sentence for the governor to commute, there was no conviction for which Hartfield could be sentenced. Poor Mr. Hartfield was left to languish in general population in a Texas prison, thinking his appeal was still on-going. As it turns out, though, he didn't have any attorneys representing him for all those decades. The trial attorney who represented Hartfield in the early '80s claims that his obligation to the client ended when the governor commuted the sentence.

You might think that now that this has gross oversight has been noticed, Mr. Hartfield would be released forthwith. But you'd be wrong. Because though a federal district court judge ruled in Mr. Hartfield's favor (DUH!), the state has appealed it. Why? Because, they say, Mr. Hartfield missed a one-year window for appealing aspects of his case. Oh, if I were a dog, I'd totally do that head cock, confused questioning look thing right now. I presume the prosecution is referring to the Antiterrorism and Effective Death Penalty Act (AEDPA), every defense attorney's favoritest piece of legislation. So Mr. Hartfield remains incarcerated, held in prison as a murderer even though there is no conviction and hasn't been one for over 30 years.

I hardly even know where to begin in my rants. Do I start with the prosecution who utterly failed to prosecute its case and is now attempting to cover-up its incompetence and the resulting massive injustice by wild misapplication of law? Or do I start with the trial defense attorney who was so pathetically incompetent, he thought his obligation to his client ended when a non-existent death sentence (for a non-existent conviction) was commuted to life in prison?

I guess I'll start with the guys who aren't on the same side I am because, while I hate prosecutorial shenanigans, I'm never as disappointed by them because, sadly, I know to expect them. So let's start with this disgusting argument that Jerry Hartfield should remain incarcerated for a crime even though there's no conviction because he missed a filing deadline. AEDPA was never, never meant to bar a person who is being held in prison without a conviction. AEDPA is aimed at limiting the relief available to defendants in federal court after their convictions have been upheld on direct appeal. But that is not this case. And, honestly, prosecutors, come on. I mean COME ON! There is no conviction. Get that? No conviction means there is nothing for which he can be sentenced. There can be no sentence without a conviction. So you have no basis for attempting to hold this man. And what on earth is he supposed to appeal, if there is no conviction and no sentence? He should remain in prison for life, even without a conviction, because he didn't appeal what, exactly? The prosecution dropped the ball on this. Big time. They have the sole responsibility for prosecuting their cases and they flat-out failed to prosecute Mr. Hartfield. They should be ashamed of themselves for trying to blame this travesty on anyone but themselves.

And, you, Mr. Defense Attorney. Mr. "I had no obligation to see that my client was released or retried after his conviction was overturned." Where on earth did you go to law school? And how do you still have a license to practice law if your sense of your obligations to your clients is so entirely lacking? You obviously stayed on the case after the appellate decision overturning your client's conviction came down. After that, the state tried twice to get the appellate court to reverse that decision. That happened before the bogus commutation, so you must have been involved or at least aware that the appellate decision stood. So how on earth do you come to the conclusion that you had no obligation to get your client out of prison or to a second trial? It boggles the mind that people like this are allowed to represent people in court. If you still have an active law license, you need to lose it for this. You deserve to be cast out of professional associations. You deserve to be on the wrong end of a giant civil suit by Mr. Hartfield. You deserve never to have a peaceful night of sleep again for the rest of your years.

Had I, or any decent defense attorney, been on Mr. Hartfield's case in 1980, you can bet this case would have been resolved decades ago. Literally decades ago. A real and diligent defense attorney would not be satisfied that his client got his non-existent death sentence commuted. Heck, a half-awake, coked-out defense attorney ought to be able to recognize the giant, enormous, huge jurisdictional flaws in sentencing a man to life in prison when there was no conviction.

The District Attorney says because of the appeal, it's "premature" to discuss the possibility of a retrial. And then there's this gem from the trial attorney:

Scardino [defense attorney] said that if Hartfield's confession, which he believes authorities illegally obtained, is allowed at a retrial, Hartfield risks being sent back to death row.
"You have to think: Why would you undo something like that now when you might be looking at something like the death penalty?" he said.

And Sarah's head explodes.

Ok, one last time for the cheap seats in the back: There is no conviction, no valid state's appeal, and nothing to undo. The state's appeal bent on keeping this guy in prison absent a conviction is cow manure. The stinkiest, nastiest pile of cow manure I've ever seen. The attorneys fighting to keep a man serving a life sentence without a conviction should be ashamed of themselves. And they should probably be disbarred. (No, I'm not kidding. This is despicable.) And defense attorney, there is nothing to undo. Hello! There's NO CONVICTION! You do not get to hold a man in prison for failing to file an appeal of nothing. And you do not get to consider whether or not to undo something that doesn't exist.

What needs to happen, and happen fast, is this. The Fifth Circuit Court of Appeals needs to reject the state's appeal. They need to order the immediate release of Mr. Hartfield for violation of his Constitutional right to a speedy trial. Sure, they could skip that part and instead refer the case back to the Texas District Court with an order to retry or release Mr. Hartfield. Then it could be up to the state trial court judge to hold a nonsense hearing at which that judge could then consider the 4 Barker v. Wingo factors, where a judge could then consider whether a 30 year delay based on the utter incompetence of all parties is really a violation of the 6th Amendment. Can't you just see a Texas judge saying, "Well, he waited 30 years to assert his right not to be in prison without a conviction, so no violation?" But for crying out loud, no trial court should be given the opportunity to make the wrong call on that, allow a trial to go forward and make Mr. Hartfield go through rounds of appeal before we ultimately get to the conclusion that ought to be blatantly obvious to a kindergartner.

Because this case? This case is the absolute poster child for Constitutional speedy trial violation. My god, how can anyone not see that?

Let Jerry Hartfield go.

Flip away, my friends. Flip away!

The bird, that is. At cops. At least if you live within the jurisdiction of the Second Circuit Court of Appeals (New York, Connecticut, and Vermont). Per that court, as of today, they have ruled that flipping the bird at a cop does not warrant an arrest. To which I say, "Umm... duh."

The man in question saw a cop on the side of the road with a radar. He stuck his arm out the window and let the officer know what he thought of the cop's actions. Presumably only after making sure that his wife, the driver, was not exceeding the speed limit. Because, boy, if she had been speeding and he called that kind of attention to the car, I can't imagine the resulting fight would go well for him. The cop didn't pull her over for speeding, but followed the couple at their destination. He told them he was conducting a traffic stop and asked for license and registration. He told the man he was in trouble. And he called for back-up, which brought him 3 other cops. But then an officer told the couple they were free to go. The man tried to voice his feeling that he was not being treated well and was then arrested.

The charge of disorderly conduct was dismissed, of course, because one is actually allowed to insult officers and express displeasure with one's treatment at the hand of officers. Today's ruling came in the context of a civil suit filed by the couple. A lower court dismissed the suit, buying the officer's explanation that he stopped the couple out of concern for the woman's safety. But the appellate court rejected that explanation, finding it unreasonable to conclude that a woman is in danger simply by being in the presence of a man who would flip off a cop.

And to this result, I say, "Huzzah!" As should we all because we need to hold police officers accountable for their actions. Most cops are good people and good cops. They do their best to do the job right. But there are bad ones, abusive ones, or just plain thin-skinned ones. Those officers need to be reigned in. I have a particular bone to pick with the kind of cop involved in this case, the thin-skinned ones who think they are entitled to bowing and scraping from the rest of us. We the people are not obligated to show these cops total respect at all times. We are obligated not to commit battery or assault, as we are obligated not to commit those crimes against anyone. But we can say mean things to them. We can ask them to explain themselves. And, yes, we can insult them with gestures. (As long as we don't make physical contact, as that would constitute battery.)

We should all want the best, most professional police force we can have. Part of that means they need to be able to suck it up and take it when the people they encounter aren't always that thrilled with them. If they can't take an insulting gesture from a passing motorist, then perhaps they should find another line of work.

Calm down, folks

Just calm down. Kanye West is not going to be tragically blocked from parenting if Kim Kardashian does not make her divorce from Kris Humphries official before she gives birth. Yes, like many (most? all?) states, California has a law addressing presumptions of paternity. And, yes, as in many (most? all?) states, a man is presumed to be the father of children born to his wife. But that's not going to mean Kris is the legal father of Kim's baby, even if they're still technically married when the baby comes.

Because the two don't live together, for one. And because they clearly commenced divorce proceedings long before this pregnancy. So what's going to happen is that Kim will have the baby and will put Kanye's name on the birth certificate. Kanye will sign a declaration of paternity. And Kris would never, ever try to assert any sort of parental right, even if the divorce isn't final yet. Why on earth would he when by all accounts he hates Kim and won't mention the pregnancy? But even if for some kooky, crazy reason, he did try to assert parental rights, and even if the separation between husband and wife didn't kill the legal presumption of paternity, the presumption is rebuttable. It would take Kanye no time at all to get a paternity test done that would end Kris' sad attempt to mess with his hated ex.

So rest assured, Kanye is and will always be recognized as the legal father of his kid with Kim. I mean, unless there's some Kevyn or Kraig we haven't heard of yet...

The new Congressional session started today. In a rare moment of unity and collegiality, lots of members of Congress and the Vice President joined in cheering on Senator Mark Kirk, who walked up the Senate steps for the first time after suffering a stroke last year. Watch video of the Kirk's climb and try not to tear up a little.

So what we learned today is that these people really can come together and be downright nice to each other. Now wouldn't it be nice if they could take that capability and apply it to other matters?

To pay or not to pay

The time has come. Two of the regional papers I read online daily have finally gone to subscription-only access. Sigh. We knew the free news access had to end at some time as people ended print subscriptions in lieu of reading online for free. I fully understand why newspapers need to charge for access to their product. The question for me now becomes how much am I willing to pay for that access? I'm kind of a news junkie. Can I really live with not being able to read my local papers?

So far, I have not been impressed with the roll-out of digital subscriptions on either paper. One gave plenty of notice, but offers a subscription package that is offensive. The Topeka paper is offering a digital only subscription for $15 a month. But a print + digital subscription is only $12.50 a month. In my view, this is completely unacceptable. The environmental waste alone enrages me. I haven't subscribed to a print paper for years because I do not want the waste of that daily paper, the energy used to create it and the paper itself. Even with recycling, you can't undo that environmental impact. So the idea that I would have to pay more to avoid having that waste means there is no way I will pay for a digital subscription until they change this policy. I have communicated with the publisher about this and received an answer that was befuddling in its obtuseness. It's 2013, people. (Also, I find it utterly bizarre that one can't even view the "contact us" page on the website without a subscription!) The publisher swore to me that they offered a la carte pricing, but I have yet to see that option. Finally, the paper says it gives people access to 10 free articles per month, but I'm unclear when that resets as I still can't access any articles today, at the start of a new month. So far, not impressed with the Topeka paper and not willing to subscribe.

Then this morning, I went to check out the Kansas City paper. Read an article. Then I went to read a second article and with absolutely no warning, got a "you must subscribe" message. Oy. The notice thing is what I'm irked about here, because it seems if you've been offering a service for free for years, you might want to give people a little notice, a transition period if you will. At least their subscription package is (marginally) better than the Topeka paper's as it's only $10 a month, with the first month at only $1.

I honestly don't remember how much a paper subscription costs, so maybe my pricing notions are off, but $10 a month still seems like a lot. I just don't read that much of the paper. I read the political and crime stories, with a few sports stories on the side. I do not read 100% of the paper, or even 50%. I don't like the idea of paying for a whole lot of stuff I will never use. But I'm also not in the newspaper business and have no idea what their costs are and how much they need to charge to cover them. Somehow, though, it seems like the digital age is a prime opportunity for newspapers to expand their subscriber base if they could come up with more creative pricing strategies. How about offering a lower price for access to, say, 50 articles a month? I bet on both the Topeka and Kansas City papers, that's about what I average. I bet I would willingly pay up to $5 per month for that. I bet a lot of people would pay for that kind of access at a lower price as opposed to the whole kit and kaboodle for $10-15 a month.

My main hesitation at subscribing to either of these papers right now is that my truly local paper is still fully free online. I would not hesitate to subscribe to that one, as it's the one I read the most frequently. I doubt I would balk at paying $10 a month for that one. Until I know whether I will have to subscribe to that paper, I am reluctant to commit to either of the other two that I rely on less. Especially with the feeling that I won't really be using all that I pay for.

I think this transition from free online news access to subscription services will be fascinating to watch unfold. It's uncharted territory for everyone. Newspapers don't have anyone but themselves to blame for online readers balking at paying $10 a month for something they have freely accessed for years. Over a decade in some cases. I fear they may be shooting themselves in the foot by starting paid subscriptions at such high prices. Ease people in, folks. I really don't object to paying you for the service. You're just not convincing me with the prices you're charging so out of the blue. Somewhere there has to be a sweet spot, a perfect pricing plan that gets people to pony up without complaint and lets newspapers keep the lights on. I really hope that sweet spot is less than $10 a month per paper.

What say you? How much would you pay for online news access? Especially to a newspaper you've gotten used to reading for free?

The Craigslist Sperm Donor

Did you hear the one about the Craigslist sperm donor? Two women in a committed relationship wanted to have a child. They had opened their home to several children through adoption, but wanted the experience of a pregnancy and a child biologically connected to at least one of them. They ran into trouble when their doctor balked at giving them the certificate they needed to go to a sperm bank. The sperm bank requires a doctor's note, basically, that you'd be a good parent. Apparently successfully parenting several children already didn't convince this doctor that lesbians could be good parents. So rather than deal with that hassle, the women went the at-home insemination route. (They sell kits for this, fyi.) And they went to Craigslist to find a kind, generous man who agreed to be their donor. A child was born. The donor signed a contract, waiving all parental rights and responsibilities, and the two women both legally adopted the child.

Cut to 3 years later. The two women have now separated, though they appear to remain committed co-parents. The main breadwinner for the family now suffers from a serious illness (the nature of which has not been disclosed, nor should it be). As the split family has tried to deal with the financial fallout from the break-up and the loss of income due to illness, they have turned to the state assistance resources specifically intended for people like this, good, hard-working people who have fallen on tough times and need a little help to get to the other side.

Here's where the poor sperm donor comes into play. The State of Kansas doesn't want to foot the bill for this child. One might wonder whether our ultra-religious governor's pro-hetero, anti-gay marriage stance might have something to do with one of the state's administrative agencies not wanting to pay assistance to the spawn of a lesbian and a sperm donor who was then being raised by two lesbians. Given the Kansas Department for Children and Families' stated preference for all people to be married (they have truly pitched the idea that women should marry their way out of poverty), it isn't overly-cynical to presume that disapproval of two lesbians co-parenting without a dad might have something to do with this situation. Because the Department insisted the women provide the name of the sperm donor. And have subsequently gone after him for child support. Even though the child has two legal parents, both of whom have legally adopted the child. The two women are steadfastly on the sperm donor's side in opposing this attempt to collect child support.

The Department's stated justification is that the women didn't go through a proper sperm bank, so the man's waiver of parental rights and responsibilities isn't valid. Ok, I get the distinction they're making and how Kansas law specifically addresses sperm donation through a licensed sperm bank and not through private donations and inseminations done in the home. But, still, wasn't this issue of legal parentage addressed when the legal adoption went into effect? Generally, when a child is legally adopted, that means the person or persons who have adopted the child take on all legal responsibility for said child. And then the people who previously had legal responsibility, like by being the biological parents, no longer have that responsibility. So how does this sperm donor's alleged legal responsibility survive the child's adoption?

When adoptive parents fall on hard times and apply for food stamps or WIC, we don't turn to the biological parents to step in and pay for the kid. Those biological parents have, after all, terminated their rights and turned those rights over to the adoptive parents. Without an asterisk of "unless they can't afford it any more." We recognize in other situations that sperm and egg donors are not on the hook financially for the child if their only involvement is providing the starting material. I took a class on bioethics in law school. In that seminar, we spent a few weeks studying these kinds of cases involving donation and surrogacy and the question of who is the legal birth parents of the resulting children. At that time, back in 2000, it appeared that the emerging consensus seemed to be toward considering who put the conception and birth into motion with the intention of parenting the child. So the surrogate, for example, would not have a claim to the child over the person who hired the surrogate. Likewise, the two women who find a sperm donor would have the superior claim over the donor. Especially when there are clear written contracts to that effect, as there was in this case.

Kansas DCF is dead wrong in this case. I hope they come to see that soon. The national publicity and general backlash might cause them to rethink. Right? In this day and age, with all of the various methods available for people to produce children and become parents, this would be a bad and dangerous precedent to set. Any potential egg donor, sperm donor, or surrogate in the state of Kansas should be very leery of helping someone else become a parent. Heck, anyone giving up a child for adoption might be a little nervous. In this case, we have two legal parents. The sperm donor is not one of them. The state should honor the adoptions it granted and leave the guy who just wanted to do a good deed for two people who wanted to be parents alone.

UPDATE: Except forget all of this because the articles that said there was an adoption were all wrong. Grr. Honestly, folks, that's a really important detail. Don't put it in the story if it's not true. Sheesh.

I still say the state needs to update its laws and practices to allow for people to become parents in creative ways. Or to allow for same-sex unions and adoptions. Why not allow someone, like say a sperm donor, to waive his parental rights and responsibilities when there is someone else willing to step in and take that up? That's the whole principle of adoption, after all. In this situation, the non-biological mother was ready and willing to do that. She, in fact, did that. She just isn't recognized for doing so in the eyes of the state.