Preaching to the choir

Pet Peeve #772

2012-01-23T19:03:00.000-08:00

Is it too much to ask that people who are fluent in English should know how to use pronouns? Very educated people don't know when to use a subject pronoun and when to use an object pronoun. Sadly, sometimes I get the sense that a lot of very educated people aren't quite sure how to identify the difference between a subject pronoun and an object pronoun. I mean, they could probably tell you a dictionary difference, but I wonder if they could actually go through a series of sentences and identify which pronouns are subject and which are object.

But I can. Because my mother was an anal retentive grammar type. Probably because her father was. He was a newspaper man. The super old-fashioned kind who wore a fedora to work every day and typed on a manual typewriter. (Totally off subject, but all while he lived to the ripe-old age of 90, having been diagnosed with MS in his 30s. Had to give that shout-out to Grandpa.)

I know our mothers all corrected us about not using me when it should be I. But sometimes, it really should be me! Me is an ok word to use. Learn when to use him and he and her and she. (Hint: if you're starting a sentence "Her and I," you're probably wrong...)

I know I shouldn't care so much about this. I should let these mistakes go because people just misspeak sometimes and because it doesn't much matter. And I should probably recognize that this hang-up says much more about me than it does about anyone else. But I can't quite help myself. I really like language. I really like it when it's used correctly. Sigh. This is probably why I'm alone.

And, on a totally unrelated note, I'm also a huge fan of the Oxford comma. Because I think a ham and peanut butter and jelly sandwich sounds gross.

2012-01-22T21:54:00.000-08:00

Did you see this story this week? About the 5th grade teacher who limited each student to only 3 bathroom passes a week? Obviously, the students got other chances to go to the bathroom during the school day, but they're not allowed to leave class more than 3 times a week.

Maybe on the surface, it doesn't seem unreasonable. The students can go at lunch and probably at recess time. And I'm sure it is disruptive to have students asking to go in the middle of history discussion. But all I can think about is the girls. The poor, early blooming girls.

I was 10 in 5th grade. A lot of girls turned 11 during that school year. And some girls at that age have already started their periods. Way back in 1950, my mom started hers at the ripe old age of 9. (Sadly, no one had thought it necessary to yet have "the talk" with her, so poor thing thought she was dying.) It's far more common now, of course, for girls to hit puberty at such an early age. So all I can think about is how awful it must be to be in a classroom like this as one of those girls. Being 10 and having your period has to be hard enough without having a teacher who won't let you leave the classroom when you need to go. No school girl needs to have an accident because she's not allowed to go to the bathroom when she really needs to. Sometimes when you're young and new to this whole menstruation thing, you don't realize you're about to have a problem until you are really on the verge of a problem.

Happily, the school principal is apparently going to end the bathroom restriction. So I can stop worrying about those poor girls having really unfortunate, embarrassing classroom incidents. And if you're thinking I'm taking this issue a little too personally, well, I wouldn't know anything about that...

Oh, Kansas. I love you so. Why do you make it so hard?

2012-01-20T19:39:00.000-08:00

It's a general rule that if Kansas makes the national news, it's not for something I can be proud of. Today is no exception. When Governor Sam Brownback took office one year ago, he announced creation of the Office of the Repealer. The job of the Repealer in Chief was to pour through Kansas statutes and regularions with a fine-tooth comb, identifying the ones that were unnecessarily burdensome, wasteful, and should be stricken from the books.

When this was first announced, one statute jumped out to me as an obviously out-dated, unenforceable, nay unconstitutional and immoral, statute that should be officially removed from the books. I was not alone in picking out K.S.A. 21-3505 as the obvious and natural first statute to be targeted by the repealer. That statute criminalizes sodomy between fully consenting adults of the same sex. This is a statute I would have found immoral and reprehensible all along as the government has no business criminalizing consensual, adult sex and has no business making value judgments that heterosexual sex is ok but homosexual sex is a crime. But the wrongness of this statute became more apparent after the U.S Supreme Court weighed in in 2003. In Lawrence v. Texas, the Supremes finally and clearly said it is unconstitutional to criminalize sexual activity between consenting adults, no matter what kind of sex or the sex of the people involved. And I, my like-minded progressives, and an awful lot of libertarians the nation over rejoiced.

But the Kansas legislature hasn't addressed our statute, leaving it on the books. Now, clearly no one could be prosecuted under that statute. And I would LOVE to see police try to arrest anyone under this because I'm thinking the 1983 claim would be pretty spectacular. (That refers to federal section 1983, the federal statute that authorizes citizens to sue for violations of their civil rights.)

So when the Repealer this week finally revealed his list of statutes he'd identified that should be repealed, lots of people hoped (maybe some even expected) that our good ol' unconstitutional gay sodomy statute would make the cut.

Well, the list came out today and, no, it didn't. And the New York Times broadcast our shame to the world. I wish I could say I was surprised. But, frankly, I wasn't. Because our governor is a C-Streeter. A devoted Catholic. A Santorum type. We know he supports faith-based initiatives in pretty much every aspect of government services. We know he opposes same-sex marriage, on religious grounds. I am confident he believes homosexuality is immoral, a sin, etc. I wouldn't be surprised at all to hear him say gay sex should be illegal, but I don't have any direct quotes from him on that. So it isn't a surprise to me that he doesn't particularly care about Kansas' gay and lesbian population being made to feel like second-class citizens because our state technically views their loving relationships as criminal acts. It doesn't shock me that he doesn't care about my fellow Kansans worrying that a rogue, bigoted cop or sheriff might decide to arrest them citing this statute as authority. It doesn't surprise me that he just doesn't think there is anything wrong about this statute.

I wish we had a legislature who would just vote to repeal this statute anyway. Because I would love to see if Brownback would have the nerve to reject that repeal. Or would he take the coward's way out and let repeal pass into law without signing it? Or would he step up and do the right thing by signing the repeal into law? Sadly, though, we will never find out because enough of the Kansas legislature is controlled by like-minded religious bigots* who probably secretly want to keep that statute on the books as a protest against those activist liberal supreme court justices who are stepping on their right to criminalize sex they see as icky and immoral.

So Kansas will remain a state where consensual gay sex is technically illegal and my gay brothers and lesbian sisters still have to live with the knowledge that they are less desirable, at least as far as our legislature and the voters who put them into office are concerned. And we will once again make national headlines for something I find deeply shameful. Sigh. It's days like today that I wish I had a portable career and a moveable house. Living within walking distance of Allen Field House isn't always enough to make me want to stay here.

UPDATE: My legislative liaison (aka my friend who closely follows the leg) tells me that the Recodification committee has listed this bill on their policy recommendations, so maybe the statehouse will take it up. Here's hoping.

*please understand I am not saying all religious people are bigots. I am specifically referencing a large chunk of my state legislature who have made some pretty despicable statements about homosexuality and you all know I don't look kindly on that. I just can't name them all.

2012-01-18T18:38:00.000-08:00

Have you heard about the "controversy" around tonight's episode of "Modern Family?" It's absurd. An anti-profanity crusader was asking ABC affiliates not to air the episode and urging people to boycott it. And why? Because one of the plot lines is about a toddler saying a bad word. The f-word. This anti-profanity guy has somehow decided that this is somehow bad. Glorifying profanity, perhaps? Encouraging it? I'm not entirely sure because this article doesn't exactly explain the objection.

This is so absurd, I'm tempted to think it's a fake controversy to get a little publicity. But the show doesn't need the extra publicity as it's already a hit and just won the Golden Globe for best comedy. So maybe Mr. Anti-Cussing wants the publicity? Because, honestly, how can anyone object to a family comedy dealing with that time-honored tradition of hearing a small child say a bad word. Every family goes through this. The kid hears a word, repeats it, gets the shocked reaction and so decides that saying the word is fun, and keeps saying it. The horrified parents work desperately to find a way to get the kid to stop saying the word, especially before they have to go out in public (like say a wedding, as in this episode). They fret that everyone will think they're terrible parents, etc. Sheesh. This happens to everyone. I've read blog posts about it. I've talked to friends about it. I've heard the story of the first time I said the f-word.

In short, there is nothing remotely shocking or bad or controversial or anti-family or unwholesome or anything else about this being a plot on a family comedy. Actually, it seems a plot that was tailor made for this particular show. Know who should be ashamed? Mr. McKay Hatch of the No Cussing Club. For trying to promote himself over something so un-controversial. Or for being so stupid that he actually thinks this is an issue worth fighting over.

2012-01-16T21:22:00.000-08:00

I understand the need for record cites in written materials submitted to the court. I get that each party needs to point to the specific point in the trial transcripts where the testimony or attorney statement or court ruling occurred. I've certainly found more than one occasion when the record cite doesn't quite say what the party claims it does.

But let me be clear: actually plugging record cites into a brief is the worst part of my job. Absolute worst. Sigh. Two paragraphs down...

Question: How big of a dork am I?

2012-01-16T17:59:00.000-08:00

Answer: When I watch a Lifetime movie and realize it's based on a real case, I get online, find the actual court opinion, and read it.

You can decide for yourself exactly how much of a dork that makes me.

If I were in charge, part 2

2012-01-15T09:24:00.000-08:00

no one would ever again use the phrase "that being said." It's overused, weak language. Meaningless, pointless, stupid.

Drives me crazy. CRAZY.

Maybe I should have stayed away...

2012-01-13T19:45:00.000-08:00

I know, I know. I've been radio silent of late. Well, if we're FB friends (or, gasp, real life friends!), you know that my home computer has been a little under the weather. I got a nasty, nasty trojan malware thingie that would not let me access ANY executable file. This sucker was so evil, it even deleted (or at least thoroughly hid) my antivirus software. It took a few days before a friend came over and finally freed my computer from the trojan's evil clutches. So now my computer is fully functional again. And just in time for me to work all weekend. Joy!

But I've had plenty to talk about this week. Which made the computer thing a tad annoying. Gov. Brownback gave his state of the state address. I can always rant about something related to Rick Santorum. There were a couple of interesting US Supreme Court cases this week. I will probably get around to some of that this weekend while I work.

I'll start with the Kansas governor's recently revealed proposal for overhauling our state's tax code. I knew I wouldn't like it. I knew it would be appalling and completely contrary to anything that has actually worked for an economy like Kansas. But I have to admit, it does accomplish a pretty impressive feat.

The governor is proposing reducing the tax rate on all income above $30,000. So he's playing it like anyone who earns more than that amount will pay less in income tax. But that's not really true. Because at the same time, he is advocating eliminating virtually all income tax deductions. So those lucky parents making less than $30k? They would no longer be able to claim the earned income tax credit. Which would actually increase their tax burden. And all of us who get to deduct mortgage interest and property taxes and student loan interest wouldn't be able to do so anymore. I'm about to do my taxes for this year. When I do them, I will also try to calculate how these proposed changes would affect me. I don't think I will be pleased. And finally, the sales tax increase that was approved last year on the condition that it would phase out after one year? The governor would like to keep that around. Indefinitely.

When you actually break down the proposal, it sure appears that the governor has managed to create a tax plan that would both raise taxes on most people while also reducing the state's overall income tax revenue. That took some work to come up with. Meanwhile, of course, altering the state's income tax plan this radically undoubtedly means that the tax burden will shift to local taxes, like sales tax and property taxes. Let me tell you, I am really excited about having to pay state income tax on the property tax I pay on my house while also watching that property tax amount increase because the county will need to compensate for the decrease in its share of state income tax revenue.

And somehow, the governor tells us he is just sure that this plan will be our state's path to prosperity. What he can't tell us is how exactly a plan that screws over this state's workers, families, and consumers will do that. Undoubtedly because he can't. Because it won't.

What's the difference between 2 presidential candidates and Fred Phelps?

2012-01-05T21:46:00.000-08:00

We all agree the Westboro Baptist Church is despicable. Right? We all agree that their protests at funerals, especially military funerals, are shameful. That their signs expressing sentiments like "Thank god for IEDs," "God hates fags," "God hates America," and "God blew up the space shuttle" (always my personal favorite) are outrageous. Their vitriol is universally dismissed. Right?

So please explain to me what on earth makes Rick Perry and Rick Santorum any different from the Westboro Baptist Church. Rick Perry thinks gays are asking for "special rights" when they ask not to be tortured, imprisoned, or executed simply for being gay. Rick Santorum thinks the US is pushing some silly "agenda" when the State Department announces its intention to side with LGBT organizations that fight back against oppression of gays in foreign nations. Rick Perry equates giving money to these organizations with making "war on traditional American values."

So, really, how are these men any different from the Phelps clan? They may not use the word "fag," but the hate and disgust is pretty much the same.

Perry, the governor of Texas, responded by saying, “Just when you thought Barack Obama couldn’t get any more out of touch with America’s values, AP reports his administration wants to make foreign aid decisions based on gay rights.” He said the Obama administration is making “war on traditional American values” and on “people of faith” by “promoting a lifestyle” they find “deeply objectionable.”

You know what, Rick Perry? I find your statement deeply objectionable. There is nothing moral or right or justified about refusing to stand up against the persecution, prosecution, or execution of LGBT people. Saying we're going to assist organizations that fight back against gay bashing isn't a challenge to anyone's faith.

The bottom line is that men like Rick Perry and Rick Santorum truly believe that gay bashing, that ranting against the scourge of the "homosexual lifestyle," that outlawing homosexual acts are traditional, core American values, values that need to be defended. I'm not stretching Perry's words to come to that conclusion. It's all right there in his statement. And Santorum has made it clear that he believes states should be free to criminalize same-sex sex acts.

The Rick Perrys and Rick Santorums of the world oppose a UN resolution declaring that persecution of gays is a human rights violation and oppose US foreign aid policy sharing this view for one simple reason. They want to be free to continue with their own gay bashing. They don't see persecuting or prosecuting gays to be a human rights violation because it's something they do every damn day of the week. And they won't stand for anyone telling them what they do and say is wrong.

Dear Republican voters:

2012-01-03T20:22:00.000-08:00

You probably don't really care what I think. I mean, we all know that no matter who you nominate for president, I'm going to vote for Obama come November. Because no matter how disappointed I might be in his lack of backbone, he's still better to me than anyone you've come up with yet. (And he did get rid of DADT, which was a pretty big freakin' deal to me.)

But let me tell you this. There is probably no one you can nominate who will motivate me to donate money and time to the Obama campaign more than Rick Santorum. I mean, Ron Paul is a scary nutjob, but I don't seriously worry that he might win. And I don't care for Mitt Romney, but I think the nation would survive his presidency. And Newt Gingrich would implode on his own.

But Rick Santorum is a bad man. I mean quite honestly that I believe he is not a good person. He is mean. He is hateful. He is a sanctimonious jerk. He seems to be completely lacking in compassion.

I really just want to crawl in a hole until this presidential election is over. But I promise you. If you nominate this ass, I will donate every spare dime I have to the Obama campaign. I will travel to swing states. I will put every ounce of energy I have into re-electing Obama. I will be so very much more energized than I was in 2008 against John McCain (who I didn't think was bad, just misguided).

But Rick Santorum is a small, mean-spirited man and is not worthy of the office of the president of the United States.

Rick Santorum, you really ought to know better

2012-01-01T13:18:00.000-08:00

Is it really too much to ask that the men and women who are seeking the nation's highest office have some even minimal sense of how rights work? That they have a consistent view of the limits of federal government and state's rights? That they have a basic sense of fairness? Or even the tiniest bit of compassion toward their fellow Americans?

Apparently, it is too much to ask of Rick Santorum. I doubt it's any secret that he's not my favorite. (Of course, asking me to pick a favorite among this year's crop of Republican presidential candidates is kinda like asking me to pick a favorite between the Raiders and Broncos...) Every time I read about him, he gives me new reason not to like him. Honestly, as a person, I don't think I could like him. His positions are just so lacking in compassion and so extreme, it seems hard to believe there is a decent person behind them.

Today, I learned via the Huffington Post that Santorum would somehow magically "annul" or "invalidate" all the currently legal gay marriages in the country if he were to become president. My first reaction to this headline was to remark on what an assy thing that is to say and threaten to do. I wager he wouldn't appreciate it much if another presidential candidate vowed to annul all of the marriages involving Roman Catholics in the country. I'd like to believe Santorum would feel that other candidate was attacking him and his marriage for no good reason. I similarly assume that all my legally-married gay and lesbian brothers and sisters from California to Iowa to New England feel some pretty serious personal offense at Santorum's insistence that he is entitled to declare their marriages invalid.

Aside from the personal level on which it is clear that it's really quite jerky to threaten to undo legal marriages entered into knowingly and lovingly between consenting adults. Isn't Rick Santorum supposed to be from the party that champions small federal government and state's rights? Because this position is contrary to both of those ideals. Passing a federal constitutional amendment about something that has traditionally been left to the states isn't a very small government or pro-state's rights thing to do.

But going one further, Rick Santorum is a lawyer. He didn't get his degree from an evangelical, in my mind questionable, law school like Liberty, either. He got it from Penn State. So just in terms of the law, he really ought to know better. No constitutional amendment passed from here on out could annul or invalidate legal marriages that have been entered into up to this point. As a lawyer, he ought to understand this basic concept that due process and ex post facto concepts forbid stripping rights after they have already been legally conferred.

Even if you agree with Santorum on the idea that same-sex marriages should not be recognized, I would hope that anyone with a brain would be troubled by his insistence that a constitutional amendment could reach back in time and do something the document itself forbids. I would like to think that we should all demand more of our presidential candidates. That we expect some basic understanding of how our republic works from those who would seek to be in charge.

I know it's exceedingly unlikely that he could win the nomination. But, still, he shouldn't get a free pass on saying nonsense like this. For crying out loud, he's got a law degree. He really should know better.

If I were in charge

2012-01-01T12:22:00.000-08:00

If I were in a position to make the rules for the criminal justice system, things would look a lot different. But have no fear, tough on crime people, I will never be appointed to the appellate court precisely because I would be so "defendant-friendly." Of course, I don't think I am defendant-friendly. I just think I am pro-Bill of Rights, pro-holding the state to its burden, anti-incarceration as the response to every crime, etc.

The first thing I would change might surprise you. The thing that is most sticking in my craw these days is the fact that the prosecution is allowed to take a defendant to a second trial after a hung jury. If I were in charge, this wouldn't happen. If I got to make the rules, a hung jury would result in the defendant being discharged from further prosecution in the same way s/he would be after an acquittal. Because in my world, the prosecution wouldn't get a second chance to make its case.

The prosecution has the burden to prove a defendant's guilt beyond a reasonable doubt. They have to prove it to the requisite number of jurors. (In most places, that's a unanimous 12, but it varies a little.) A hung jury means the state didn't meet that burden. The state failed to convince the necessary number of jurors of the defendant's guilt. Proving it to 6 or 7 or even 11 jurors should not earn the prosecution a second chance. Rather, that should be recognized as the prosecution failing. Because if the prosecution has only convinced 11 (or fewer) jurors, that is exactly what they have done: they have failed.

Instead of recognizing the prosecution's failure, though, courts have instead allowed a hung jury to be viewed as a situation in which jeopardy does not attach for purposes of double jeopardy. So the prosecution is given a second chance. And, if necessary, a third and forth and fifth. There is no set rule for how many failures to convince 12 jurors of the defendant's guilt finally amounts to a violation of the defendant's right against being subjected to double jeopardy.

If I were in charge, though, there would be a set rule. The prosecution would get one chance. One. A hung jury would be recognized as the prosecution failing to make its case and the defendant would be set free. Maybe this sounds radical to some of you, though I fail to understand why. To me, it just seems like the way things ought to be.

Oh, January 1, my old friend...

2012-01-01T10:34:00.000-08:00

I guess it wouldn't be New Year's Day if I didn't feel a little fuzzy and off. If I didn't fall asleep in an unfortunate situation or have tremendous difficulty getting up in the morning.

I really like champagne and dressing up, so even though I grumble about NYE (it's just one day out of the year so I don't buy into the whole resolution, change your life stuff; if you want to change something about your life, there are 364 other days to start, too), I can still usually get talked into going out fairly easily. Last night's best laid plan to stay home with a buddy, order pizza, and just watch football, paying no attention to the time or that silly ball, started to go to hell in the afternoon when we were both sneezing madly. It was a very warm, breezy day, so we both assumed it was allergies. I continued on with my plans to go to the KU game (shout out to Thomas Robinson and his 30-20 day). Then I went out for a beer and a little food with my game friend. And then we were just going to go see her dad's band play. And since we were going out, even though the band was playing at 7, we might as well change a little bit...

So swingy skirt and 5 inch heels later, we were buying a bottle of champagne at the Jazzhaus. Because, as you'll recall, I really like champagne and dressing up. But the problem is often that champagne does not like me nearly as much as I like it. In fact, I think champagne and I are in an abusive relationship. Every time, champagne promises me it will be different and I believe it. And so I drank the champagne. And then, true to form, I decided that a shot seemed like a great idea. Because they were offering "Bye bye 2011" shots and my friend and I were both quite pleased to see this year end. So that happened.

And then a strange thing occurred to me. The champagne wasn't going to my head. I wasn't feeling fizzy and light-headed. All I was feeling was a little feverish and that my throat was getting very, very sore. Those weren't allergies! I managed to find a place to sit and my lovely friend bought me some whisky, ginger, bitters thing to make my throat calm down. It was all of 9:30. In another 5 minutes, I was done. DONE. My other friends (one of whom is 8 months pregnant) were happy to leave, so they took me home where this nasty, nasty cold hit me HARD. Smack in the face.

So I put on my pajamas, took some NyQuil, and was passed out in bed by about 10:30. I had to take a second dose at around 3. I just did the staggering-to-the-store thing to load up on soup, Kleenex, and cold meds. (Side note: Hey, lady in front of me in the express lane, I can count! That was NOT 15 items! I hope I gave you my cold germs!) And now my throat is on fire and my head is fuzzy.

BUT I was not the least bit drunk last night and I am not at all hungover this morning. So, though I feel like absolute crap, I must consider this NYE a raging success!

How many is too many?

2011-12-30T22:14:00.000-08:00

It is entirely possible I have a problem. I am running out of places to keep books in this house. I have an entire room dedicated to books, with two giant bookcases. (There's also a treadmill and a comfy chair in there. It occurs to me that if I got rid of those things, I might have more room for bookshelves. But Maddie really likes the chair. And I really like to run.) I have another bookcase in a hallway. And a small stash in the front room. And a bookcase in my bedroom. Most of these bookcases have shelves that are 2, or even 3, books deep. And there's still not enough room. So there's a bookcase in the guest room. And then the overflow shelf on the entertainment unit in the living room where the newest acquisitions go. Most of these books have been read, but oh so many of them are still waiting their turn. I want so desperately to give them each their turns. They all deserve to be read, appreciated, handled. But I still add more. Just tonight, a nice dinner with friends led to a coffee shop which led to browsing at a bookstore which led to yet another new book...

I'm not an addict. It's cool. I can stop anytime I want. Really. No, really...

While we're on the subject of addictions, we should probably talk about the shoes...

All I want

2011-12-27T18:12:00.000-08:00

Want is such a tricky concept. It can lead to great things. Like vaccines or medical treatments from ambitious, smart people who want to find cures for the disease they saw destroying family members or friends. Or to the grand experiment of democratic republics from those who saw life under a monarchy and wanted something better.

But it can also be a destructive force. On some simplistic, basic level, isn't addiction a form of wanting? Wanting Helen led to a war. People can bankrupt themselves with wanting. Wanting bigger houses, brighter jewelry, procedures that will keep them young. People can make themselves crazy, break their own hearts every day, with wanting things out of their reach. When applied carelessly, want can be the most painful emotion out there.

What I want most for this new year is, quite simply, to stop wanting. Want has not been my friend of late. I have not felt the good kind of want, the kind that can make a person push herself or leave her comfort zone. No, I've been stuck with the futile wanting of something that is out of my grasp. And the further removed I am, the more desperately I want it. I never knew it was possible to miss a person this much. (And missing a living person is so very much worse than missing a dead one.)

So since I can't be a sensible person and stop wanting what I can't have or find something new, better, to want, all I can hope for and work on now is to stop wanting. Because if I don't want anything, I won't keep feeling so hurt and raw and cut open every damn day when I can't have it.

Pointless

2011-12-20T18:55:00.000-08:00

When is sentencing a rapist to prison utterly and completely pointless? When the rapes occurred 30 years ago and the rapist is now a diabetic, blind, wheelchair-bound double amputee who has suffered a stroke.

Now I may be a defense attorney, but I'm not exactly a huge fan of rapists getting a free pass. So ordinarily, I would approve of a man who broke into homes and raped women in their beds doing a little time. But I don't think throwing prison terms at any and all criminals is very sensible crime and punishment policy. If I had my way, a whole lot fewer people would be in prison because I'm just not sold on the idea that it's in society's best interests to incarcerate that many people. And I'm also a pragmatist.

In Mr. Brewer's case, the pragmatist in me wonders what on earth anyone hopes to accomplish by putting this man behind bars. He has now admitted guilt in two rapes from 1981. The man who was originally wrongfully convicted and sentenced to prison has long since been released, exonerated, and financially compensated. That man, Eddie Lowery, actually seems to be doing quite well. He is married and has two children with his current wife. He has also been able to reconnect with the daughter he lost when he was sent to prison when she was 2. So sending Mr. Brewer to prison isn't necessary to make anything up to Mr. Lowery.

MSNBC aired a special about Mr. Lowery's case last Friday. Mr. Brewer was interviewed for that special. He is truly a pathetic specimen at this point in his life. He does not have prosthetic limbs to replace the feet he has lost to diabetes. I'm not sure how much good prosthetic limbs would do him, anyway, as he is blind and has had a stroke. He quite simply does not pose a threat to anyone.

But he does require a great deal of medical care. In prison, he may well be confined to the infirmary. From a cost standpoint, it seems likely to me that taxpayers will pay for his medical care whether he is in prison or not. But in prison, he will be a drain on limited prison resources. An inmate with such serious medical issues will take up more time from the overworked staff that is already stretched too thin.

And what do we as a society possibly gain from punishing a man like this with prison time? I don't really feel like letting him serve some kind of house arrest or probation would be letting him get away with his crimes. The reality is that the ship sailed on that one a long time ago. I'd say once he got to live over 20 years without facing consequences, he's pretty well gotten away with it. Sometimes, we just need to accept that there's really nothing we can do about a crime that happened so long ago. This is one of those times.

2011-12-18T13:34:00.000-08:00

So, yeah. That just happened. Merry Christmas, Chiefs fans!

Sigh

2011-12-16T20:17:00.000-08:00

My days can be very depressing sometimes. There is nothing like wrapping up a Friday afternoon by being confronted with the very real human consequences of my clients' interactions with the criminal justice system. Realizing a dad can't go to a child's high school graduation even though he's 30 miles away. Knowing a broken-hearted mother or wife faces a birthday or a Valentine's Day or a Christmas alone. I'm kind of a cryer, so this stuff gets me.*

But I think it's a good thing that my job can still leave me this bummed on a Friday evening. Because it means I still care. Deeply. That I haven't lost sight of the very human component of the work I do. I'm not close to turning into just a cog in the machine.

So I'm glad the plights of my clients and their families still make me so blue. The day I don't feel this bad about it is the day I should think about finding a new line of work.

*It ought to go without saying that I am also keenly aware of the very real human consequences for the victims and their families. I ought not need to express how sad it is to think of children who must graduate from high school without a parent or sibling because that loved one was murdered. But undoubtedly some people think it's outrageous that I care about my clients' parents or children. Or even my clients themselves. I have enough compassion to feel horrible for everyone involved. But since I work with defendants, that side is what I see and am more often touched by.

2011-12-12T18:34:00.000-08:00

I know, I know. Where have I been, right? Well, I've been busy. Not socially, mind you, but with other stuff. I've been reading and preparing to host book club. I spent some days sitting by the ocean, celebrating with my closest friends and a baby. (And a toddler. Not fair to leave out the adorable toddler, but I'd met her before. Hadn't met the new baby yet.) But mostly, I've been knitting. I started out so well, long before December. But now here we are, less than two weeks from Christmas, and I'm not done. I feel like I'm not even close to done. I know it will all get finished, and it's not even the end of the world if it doesn't get finished by the 25th as I will see these people again and there is this fascinating thing known as mail. But, still, I feel like I'm back in law school in that awful last week of the semester.

Then there's the fact that I'm just so sick of it all. I'm sick of this endless race for the Republican nomination. They're all awful. And now the guy who is leading is the scariest of the lot because of his delusions of grandeur and visions of doomsday scenarios. I'm sick of things like today's news that Lowe's has pulled its advertising from a show meant to show that it is possible to be a patriotic, "real" American and a Muslim at the same time. I'm sick of the nonsense that passes for politics and governance in my state. (Really, someone in my governor's office cares that a teenager tweeted that he sucks?)

I could go on, but I really must get back to my knitting.

This Newt is not getting better

2011-11-29T09:10:00.001-08:00

Newt Gingrich is now running around the country proposing numerous points to his immigration plan. One of those points is that we should make deportation easier, simpler. In a simplistic tone, he says that if you're not a US citizen, you're not entitled to due process, so you should just be sent home without a hearing or due process. Just a plane ticket and possibly a swift kick in the rear.

Now, that sounds clear and easy enough, but can anyone spot the flaw in his logic? (Putting aside the claim that only US citizens are entitled to due process, a claim I vehemently disagree with.)

Without due process and a hearing, how do we know the person facing deportation isn't a US citizen?! As it stands now, hundreds of US citizens are wrongly deported every year. (according to CNN researchers in June 2010. I have seen similar numbers from other sources as well.) A google search yields story after story of how these people get railroaded right out of the country of their birth.

If you are accused of being an illegal immigrant, you are not provided an attorney. It can also be incredibly difficult for people who are in ICE detention to make contact with friends or family members who could either hire an attorney for you or track down your birth certificate to prove your citizenship. I would hate to think how many more mistakes would be made if what minimal protections exist now were stripped away.

So, sure Newt, we should deport all those illegals right away without due process. As long as you'll pay for the first class airfare to bring all the wrongly-deported US citizens back home.

- Posted using BlogPress from my iPhone

You're fired!

2011-11-27T14:35:00.001-08:00

I am doing the happiest of happy dances right now. The Turner Gill era at Kansas is finally, mercifully, over. It was two years too many with that very nice, but utterly incompetent, guy at the helm. I am not a huge KU football fan. Having gone to high school in Manhattan, I'm more of a K-State football fan. High school is when I really got into football. That was during the time when the turnaround started. And several guys I went to school with were pretty big players for K-State.

But I still root for KU football. And, more importantly, I live and breathe KU basketball. In this recent and ongoing conference realignment frenzy, the constant fear around Lawrence is that since no conference really wants KU football, we could find ourselves on the outside of the power conference world, being relegated to something like the Mountain West Conference. But the idea of the single most storied program in all of college basketball being part of something less than a power conference is enough to induce strokes, heart attacks, etc. Great as it is, even Kansas basketball may not be able to retain its position if it's playing 11 pm games against Colorado State and Wyoming.

So it's been awful having to watch this coach, who is so clearly in over his head and incapable of coaching big-time college football, losing blowout after blowout, leading a team on a 10-game losing streak, and actually seeming to make them worse over the course of the season. This guy should never have been hired. Here's hoping we can now find a coach who isn't just a decent man, but knows a little something about football as well.

For the sake of KU basketball, this had to happen. HAD TO. Now, please KU football, get better! Get better fast!

Rock Chalk

2011-11-15T12:55:00.001-08:00

Officially, KU basketball season started last Friday with a lopsided victory over a very out-matched Towson. But in reality, it starts tonight. In Madison Square Garden. As the headliner in ESPN's 24 hour college basketball kick-off marathon and as the top card in the inaugural Champions Classic. First up is Duke against Michigan State. And then comes the game everyone wants to see. Kansas and Kentucky. Two of the nation's most storied programs.

So it is time for a post reminding the world which program is THE most storied. Which program is the granddaddy of all other college basketball programs. It is Kansas. Without the history behind the University of Kansas basketball program, we would not have college basketball as we know it.

The inventor of the game called our town home. Even in death. His grave is within a mile of my house. We play on the court named for him. Which is in a building on a street named for him. And he was our first ever coach.

But that was only the start of Kansas basketball tradition. Because James Naismith was only the second most historically significant coach in our history. The main guy, the first real coach as we know them now, was Forrest Allen. Better known as Phog.

You may think UNC has a legendary program with a legendary coach. Heck, they even named their arena after their coach, Dean Smith. But remember, folks, Dean was a Jayhawk first. He learned his trade at the knee of Phog Allen.

And Kentucky's legendary coach? The guy they named their gym after? Yep. He was a Jayhawk first, too.

All college basketball roads lead back to Lawrence, Kansas. The cradle of college basketball.

Man, I love basketball season!

- Posted using BlogPress from my iPad

2011-11-08T17:26:00.000-08:00

I was all set to come home this evening and blog about the outrage of the day. But then it basically resolved itself, so my rant has lost all its oomph. Suffice it to say that buying a degree online from a diploma mill university is not earning a degree. Listing such a degree on one's resume displays a staggering lack of judgment and integrity. And hiring someone who lists such a degree on a resume proves that the employer's process of vetting employment candidates is sorely lacking.

2011-11-05T13:34:00.000-07:00

I'm all over Christmas this year. I'm not usually so advanced. I'm often doing the bulk of my Christmas shopping after Decmber 15th. But not this year. I have already acquired my sister's main gift and let me assure you, it is the greatest gift ever. No other gift she has ever received or ever will receive can compete. I win Christmas. Forever. Not that it's a competition...

But let me tell you, I may have taken on too many knitting projects. Sweaters (plural), a scarf, hats, other things that will not be named here because people are reading. I have at least 6 projects decided on for sure and a 7th (big) one that I want to do as well. If I actually were to knit all the things I want to knit, I would a) be broke from buying all the yarn and 2) have no time to do anything but knit for the next 2 months.

We'll see how I do. At least I already have 2 Christmas projects fully completed. And my gift for my sister really is awesome.

Hey, Herman Cain

2011-11-02T20:06:00.000-07:00

If you're running for president and you have been accused of sexual harassment in the past, especially if that matter was resolved with a financial payout to your accuser(s), you really have to understand that this information is going to become public at some point during the campaign. You can't blame the media or a political rival for making this information public. It isn't their fault that this happened. Finding stuff like this about presidential candidates is exactly what the media should be doing.

If you really want people to consider voting for you to be the leader of the free world, you don't get to limit what we get to know about you and your past.

This post is not about Rick Perry at all.

2011-11-01T20:04:00.000-07:00

The New York Times this week ran an article about Rick Perry and his stances on criminal justice issues. The point of the article was to contrast his tough, even brash, talk and actions on the death penalty against his signing into law numerous criminal justice reforms pushed by the Innocence Project and others not associated with a "tough on crime" stance.

Of course, I read the article and wanted to focus on one nugget out of the article. One key case in Perry's governorship was the case of Kelsey Patterson. Patterson was convicted of two murders and sentenced to death. The circumstances surrounding the murders, though, indeed, the entire circumstances of Patterson's life, demonstrate that he suffers from profound mental illness. The man has a long history of delusions, psychotic behavior, nonsensical ramblings, etc. He was well known in Palestine, Texas, where he had previously been convicted of assault. But while he had lots of dealings with police and even with the court system, he never seemed to have benefited from any mental health treatment, even after being found incompetent to stand trial numerous times. It's a very familiar story to those of us in the criminal justice system where far too many of our cases involve people who should receive treatment, not punishment. Estimates of the number of mentally ill incarcerated range from 20-50%, depending on who you ask.

So Mr. Patterson was a violent, psychotic, delusional individual whose serious mental illness caused very real, permanent harm to his community. Obviously, he needed to be secured in a way that he could no longer cause that harm. When secured and properly medicated, he has been described as downright docile. But since we have no real mental health treatment readily available for men as profoundly ill as Patterson, he was treated as a criminal instead of as a sick man. And he was not just charged with murder so he could live out his life in a secure prison setting. No, he was charged with capital murder and the state pursued the death penalty against him.

Naturally, I have to assume his defense attorneys presented the history of his mental illness to the jury at his trial and did their best to persuade the jury that his illness was a major mitigating factor that should prevent them from returning a verdict of death. But here is my concern. My concern is that there are an awful lot of people who would hear a story like that of Patterson and think that the best course of action is execution. That a man that ill can't ever be fixed and we're all just better off removing him from society entirely. Or even worse, that his mental illness is "no excuse!" Or that he still knows right from wrong. I have encountered these viewpoints far more than I can believe. And the people most likely to express this view are also pretty likely to be death-qualified for a jury in a capital case.

I know I can relate a story like Mr. Patterson's to individuals who share my view and trust that their reaction will be to express sorrow about the state of mental health care in this country. They will perhaps marvel at how awful it must be to live with such an illness as his. They will certainly recognize that the man should not be incarcerated in prison and/or put to death, but treated in a secure medical facility.

But how do I talk to the others? How do I, as an advocate for a client, try to sway someone who thinks that someone who suffers a profound mental illness should be put down like a rabid dog? How do I get to a juror (or heaven help me, a judge) who thinks mental illness is no excuse and does not lessen someone's culpability for a crime? Because I know those people are out there and have the ability to affect my clients' very lives.

Halloween is still growing on me

2011-10-30T12:58:00.000-07:00

Remember my Halloween story from last year? It's here, so you can refresh your memory. So this year, I decided to wear my stunning red dress and when people asked me, I would tell them, "I dressed up for Halloween." And let me tell you, I don't think I'm being immodest or egotistical when I say that dress looks pretty good on me. When I tried it on at the department store, random strangers told me it looked like that dress was made for me. It just hugs all the right parts and is such a great color on me. Red truly is my color. (As you might have guessed if you saw the pictures of my house...)

So I went to my friends' house for their chili cook-off. Then we headed to Brookside in Kansas City for some live music. We got to the bar about an hour before the band came on, so we had plenty of time to get to know the people around us, including a half-hearted Dracula, a full-hearted leprechaun (guy) wearing a bright green dress (who knew there were cross-dressing leprechauns?), and a tall, cute, built guy wearing an orange-ish sweater and calling himself a pumpkin. They initially approached the two women we were standing near but were not with. We eventually got pulled in and before we knew it, Pumpkin was the only one left really talking to my two friends and me. He was oh so tall and really quite adorable, but oh so young. He kept making me guess his age. I perked up quite a bit when he said he was 29 because 29 isn't so bad. It's definitely within the divide by half and add 7 rule. But it was a lie. He was really 24. Sigh. 26 is the cut-off for me. (Yes, I'm 38 and I'm not the least bit ashamed.) I told him my age, but I'm not entirely sure he believed me. People often don't.

Then Dracula, the leprechaun, and Pumpkin-boy had to leave. Pumpkin looked bummed, but he was not driving, so had to follow the crowd. He asked for my number before he left. Not my much younger friends or the tutu-wearing sorority girls. Mine. Even knowing I was old enough to be his Teen Mom. And, oh yeah, I gave it.

Now, he'll probably never call. (They usually don't). And I probably wouldn't answer if he did. (He is 24, after all.) But none of that matters. Because a 24 year-old hottie asked for my number. I call this Halloween a raging success.

Oh, and I get to go to Monday Night Football tomorrow, too.

2011-10-29T15:07:00.000-07:00

Where oh where did people get the idea that death penalty defense attorneys are making boatloads of money on death penalty cases? You see it all the time (if you're nutty like me and read comments on online news sites, especially) that members of the general public will complain about these lawyers who intentionally delay death penalty cases so they can stay on the gravy train. Because there is so much money in representing death row inmates.

Let me make something really clear. There's not a whole lot of money in death penalty defense. Yes, the lawyers make a living, but no one's getting rich doing this work. The vast majority of death row inmates don't have millions of dollars lying around to pay private counsel, so the lawyers are public defenders or appointed attorneys paid a pittance per hour by the state or county. Or they are do-gooder non-profit attorneys who get paid by agencies relying on donations. Or they are big firm attorneys doing pro bono work. All of these attorneys could be making a heck of a lot more money in some other area of the law.

There are lots of reasons why people come to do death penalty work, but money is not one of them.

Rant of the day

2011-10-25T16:02:00.000-07:00

You know how to make an appellate defender's head explode? Mention that there's a pending motion on the central evidentiary issue to the case that needs to be taken up right now and then go off the record to discuss it! And never again mention that motion for the rest of the trial!

GAH!

Do you see what the problem is for me? If I don't have a recorded argument, I don't have an appellate issue. I have no idea what the arguments were, what specific points of testimony were at issue, and what the court's ruling was. It is absolutely infuriating.

There is no excuse for not having a record of every single thing that is said in court. Every. Single. Word. Here is what my rule would be: If the judge is involved in a conversation, it needs to be recorded. I don't care if it's just a scheduling matter. Those scheduling issues can matter quite a bit. I once had an issue where I very much wanted to know why it was that the particular witness wasn't called because I very possibly could have had an issue if it had been handled one specific way, but because a year later, the parties involved couldn't remember exactly how it went, I couldn't do anything about it.

I also don't care if you think you can have the conversation in chambers off the record and then come back and make the record later. The record made later is never adequate as far as I'm concerned. It's never in the level of detail that the real argument was. Given that a defendant's argument can be procedurally defaulted if the trial level argument didn't include the key word or phrase, it's really troubling for the appellate attorney to get only a recap of the argument rather than the full thing.

So record everything. EVERYTHING! Or my exploded brain matter might just get all over you.

And on a slightly related, but not really, side note: Can we please, please, please abandon the system that allows a court reporter to consider my client's trial record to be his/her intellectual property? It offends me to the core of my being. And paying court reporters by the number of pages they produce is a bad system that needs to go. My most recent transcript was done by a CR who made every sentence its own paragraph.

This made the transcript much longer.
So he could get paid more.
Since he gets paid by the page.
Oh, and it's really tough to read.

It's a good thing I had pumpkin beer and apple cobbler at home this evening, because by the end of the day, I was pretty darn aggravated.

If it's happening in Kansas, it must be nuts, right?

2011-10-12T19:34:00.000-07:00

Admit it, you kind of think that, don't you? All anyone in the nation ever hears about Kansas is we're the backwards state who did away with evolution in the state science standards. (No one ever mentions how the population rose up against those loons on the state school board and voted every single one of them out the very next chance we got, replacing them with normal people who restored the standards.) We're the home of that wacky, awful Westboro Baptist Church. (It's a "church" of about 50 people all from one family and the rest of Kansas pretty much hates them. We ignore them; it's the rest of you outside of this state who are giving them attention.)

And now it's all over the national news that Topeka, Kansas has now made it legal to commit domestic battery. According to msnbc, "In cash-strapped Topeka, domestic abuse not illegal." Makes for a flashy headline and elicits gasps, but it's not true. Domestic battery is still a crime in Topeka. Did everyone get that? Let me write it again, just in case.

Domestic battery is still a crime in Topeka.

Never stopped being one. The city of Topeka had a redundant municipal ordinance, as they do for many misdemeanors. It's standard practice for cities to have municipal ordinances that mirror state misdemeanor statutes. Where there is a redundant municipal ordinance, the District Attorney can turn over prosecution of those offenses to the city prosecutor's office, which the Shawnee County DA did for all redundant misdemeanors in the city of Topeka, a move the DA said was required by budget cuts. (Outside Topeka city limits, the DA's office retained responsibility for all misdemeanor prosecutions.) The city of Topeka balked, pointing out that having to prosecute all those misdemeanors would surpass their budgetary limits. The city pointed specifically to domestic battery cases because those cases a) constitute the largest single block of misdemeanors involved and b) require treatment resources the city doesn't have. So to force those prosecutions back to the DA's office, the city repealed the redundant municipal ordinance.

The territorial pissing match that is going on between the city of Topeka and Shawnee County is frustrating to watch. Neither the city prosecutor's office nor the DA's office really has the resources they should have to function at optimal levels. When budgets get cut and cut and cut, something has to give. It is highly unfortunate that this city vs. county budget dispute has centered around domestic battery, when it could have been DUI or marijuana possession or shoplifting. Of course the city probably picked domestic battery as the center point of the dispute precisely because it would be the most likely to generate controversy.

But it is more unfortunate that the real issue here is being lost in hyperbole and untrue headlines. It's more fun to rail against a city putting its stamp of approval on beating your spouse. It's more interesting to talk about this being a move in the ongoing "war on women." It's more glamorous to weep and wail and gnash teeth than to focus on the real issue here which is what services do we want to receive from our city, county, state, and federal governments and how much of our money are we willing to pay up to ensure those services are provided. Clearly the people of Topeka and Shawnee County need to have this discussion. They may need to think about finding some new direction for the County Commission and the City Council who sets budgets. The citizens of Kansas may need to think about what sort of money we want our local governments to get from the state budget. We probably all need to really think about how much we want to keep chasing more and more and more cuts. Budget cuts and tax cuts are bleeding this state's vital services dry. But we won't get to any of that discussion if we're all caught up in this red herring complaint that domestic battery is now legal in Topeka. It isn't.

In conclusion, domestic battery is most definitely a crime in Topeka, just as it is in every inch of the state of Kansas. But it can't magically get prosecuted if we don't fund the prosecutors' offices.

2011-10-10T22:44:00.000-07:00

Oh, Montel Williams. I never really judged you terribly harshly for your television show. I even rather liked you once you became a vocal advocate for MS (a cause close to my heart). Until you started pitching payday loans on t.v. Having worked at the consumer law clinic in law school, I have seen just how much damage those loans can do. Shame on you for participating in the financial shenanigans.

Update

2011-10-10T20:10:00.000-07:00

I don't hate football anymore.

My Chiefs have won 2 straight and are looking much better. (And did y'all see that wicked awesome catch Dwayne Bowe made for a touchdown yesterday?!)

My K-State Wildcats are undefeated and ranked again.

I just might stick with this football thing for a few more weekends.

The Amanda Knox case: it's just not that hard

2011-10-03T21:25:00.000-07:00

So the Amanda Knox (and Raffaele Sollecito) case might now, mercifully, be over. The appellate court in Italy today overturned her conviction for murder, as well as her former boyfriend's. You'd have to live under a rock not to have heard about that by now. But let's be clear about what the jury found. The jury found affirmatively that these two did not commit the crimes. The jury didn't just acquit them, the jury absolved them. I feel like that tidbit is getting lost in the news coverage. This wasn't just a finding that the evidence was insufficient.

And yet, sadly, these two will probably have to live with a cloud of suspicion for the rest of their lives. This is evident from the commentary on television and the comments online. So many people are still clinging to the idea that they probably had something to do with it or know something or in some vague, amorphous way are still worthy of suspicion. Legal experts on CNN and Fox News both seem to have missed the significance of the jury designation that they did not commit the act. Bill O'Reilly and his judge were both shamefully unaware of the facts of the case but were both still unabashedly proclaiming their certainty that she was involved somehow.

Even more infuriating, people everywhere are bemoaning the fact that we will never know what happened to Meredith Kercher. Which to me might be the most maddening legacy of this case: that a crime so basic, a case so easily solvable, was turned into this muddled mess. That so many people are now so convinced that there is more to this case than there really is. But there is not. Let me posit a theory, and when reading this, try to put aside the insanity that surrounded the accusations against Amanda and Raffaele.

Young woman comes home after a night at her boyfriend's. Finds a few things amiss, so brings the boyfriend over to share her concerns. There are a few drops of blood in the bathroom. Upon inspection, they find a broken window in a bedroom. But nothing is obviously missing. The one roommate who was supposed to be there overnight is not answering knocks on her door, which is locked, or answering her phone. The boyfriend goes outside to see if he can see into that bedroom through the window. Throughout all of this, the girl and her boyfriend are calling the other roommate, the boyfriend's sister (a cop). Eventually, the reality of the situation sinks in and they call the police.

Once police arrive, the bedroom door is opened and the roommate's body discovered. Police secure the scene and begin the painstaking process of evidence collection. They find footprints, fingerprints, and handprints throughout the murder room and the hallway. They also note money missing from the dead woman's purse.

Eventually, the fingerprints lead to a match of a man known to local police. He has been breaking into houses and offices lately. And he is known to carry a knife. The man is caught in another country through the help of a friend, who gets the man to admit having been at the house when the murder occurred, though he was on the toilet when the real killer came in and killed the victim. He also cryptically tells the friend he can't come back. But he is extradited back and DNA testing reveals that his DNA is all over the crime scene. Sadly, his DNA is also inside the victim. And the shoes he is wearing match the bloody footprints in the hallway.

Honestly, is this case hard? Is there even any question? These are the facts of the Meredith Kercher murder. These are the facts of the crime Amanda and Raffaele were convicted of. These facts, which point so clearly and exclusively at one man, were somehow obscured, distorted, even overlooked, in favor of a fantasy.

Here is what happened. Rudy Guede broke into the girls' apartment through Filomena's bedroom window, using the metal grate on the window below hers as a ladder. He rifled through her room before going to the bathroom. It was a holiday weekend, so he may well have thought the girls would all be gone for the weekend. But while he was on the toilet, Meredith came home. We know Rudy used the toilet because he didn't flush, possibly so as not to create a noise to alert Meredith. Somehow, there was a confrontation. Rudy took out the knife he carried with him (as he had done when another home-owner caught him in a burglary some weeks prior). Perhaps he tried to get his way out of it by trying to seduce her. The fact that his DNA (not semen) was found inside her vagina certainly indicates there was some kind of sexual attack. And then he slit her throat. As many first-time killers do, he covered her with a comforter and then tried to figure out what on earth to do next. He set the knife down on the bed, he found money in her purse, he took her cell phones, picked up the shoe that had come off in the attack, and left her room, locking the door behind him. He went into the bathroom to try to clean up and then fled out the front door. At some point he threw Meredith's cell phones into a yard some blocks away.

This is the scenario supported by the evidence. This is the straight-forward answer that should have been reached by the investigation. But from day one, a prosecutor decided he didn't like the way Amanda looked. She was odd. There was something off about her. So the simple, clear case was turned into a wild, crazy conspiracy, with desperate attempts by the police to create evidence against Amanda and Raffaele, with lots of character assassination being done in the tabloid press just to be safe. The first judge bought it hook, line, and sinker, and brought a jury along with him.

Happily, today, a second jury finally saw through the prosecution's shenanigans. Amanda is on her way home and Raffaele is probably already in his family's home. I can only hope that they will both be able to move forward from this point in their lives, though we know from the DNA exoneration cases that it can be harder than people realize to return to life after exoneration.

As for the rest of us, I hope that we will all do a better job in the future of letting the evidence lead us to the solution rather than picking our solution first and mangling the evidence to fit that solution.

And let there be no mistake about it: Meredith Kercher's killer has been found. He has been convicted and he is serving a 16 year sentence. His name is Rudy Guede. And his guilt is the clear, simple, obvious solution to this very basic, garden-variety burglary/murder case.

2011-09-28T21:43:00.000-07:00

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...

2011-09-28T20:44:00.000-07:00

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.

- Posted using BlogPress from my iPad

Location:Ladies and gentlemen of the jury

2011-09-27T15:51:00.001-07:00

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.

- Posted using BlogPress from my iPad

Location:Wishes

I'm hardcore, part 2

2011-09-24T21:09:00.000-07:00

"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.

2011-09-21T21:00:00.000-07:00

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

2011-09-21T20:43:00.000-07:00

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

2011-09-20T22:41:00.001-07:00

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.

- Posted using BlogPress from my iPad

My head hurts

2011-09-20T20:53:00.000-07:00

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

2011-09-20T19:57:00.001-07:00

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!

2011-09-18T20:03:00.000-07:00

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.

2011-09-17T13:04:00.000-07:00

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

2011-09-15T15:02:00.000-07:00

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.

2011-09-14T21:38:00.000-07:00

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'

2011-09-14T19:50:00.000-07:00

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.)

2011-09-11T19:04:00.000-07:00

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

2011-09-11T17:35:00.001-07:00

I hate football.

That is all.

2011-09-09T23:24:00.001-07:00

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.

- Posted using BlogPress from my iPad

Persistence

2011-09-08T15:27:00.000-07:00

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

2011-09-07T21:11:00.000-07:00

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.

2011-09-07T16:17:00.000-07:00

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

2011-09-04T20:36:00.000-07:00

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?

2011-09-04T12:21:00.000-07:00

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

2011-09-03T14:58:00.000-07:00

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

2011-09-02T22:23:00.000-07:00

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

2011-09-02T15:50:00.000-07:00

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?

2011-09-02T15:46:00.000-07:00

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.

Exasperation

2011-08-31T20:44:00.000-07:00

A friend asked me recently to blog more. Well, fine, what would you like me to blog about? How sad I can get? How lonely I am most days? How heartbroken I still am? Would you like to read all about how barren the dating landscape is for someone of my age and with my apparently unlikeable personality? Because, trust me, it's depressing. And I really don't think it's just that I'm completely unable to trust anyone after the only person I've ever loved threw me away one morning with absolutely no notice. (And, who are we kidding, I still kinda love the bastard, even though he doesn't deserve it.)

Or you could read all about how frustrated I am at work now. How a job I loved and used to live for has become completely unfulfilling, leaving me feeling stifled and useless. Not to mention that the workplace, which for so long was my main source of friends, has become downright unfriendly of late.

Or we could talk about how I can't afford to do anything proactive to improve my life because of the ridiculous expenses I have incurred due to the hideous roller skating incident. And I have good health insurance! Imagine how overwhelmed I would be otherwise. Which then just ticks me off to think how many people in this country would deny access to affordable health care for all of their fellow humans. Which then just leads me into thinking how hopeless our country is because the mean pro-business, anti-government, anti-compassion jerks seem to be controlling everything.

But, really, what does any of my petty unhappiness matter when the entire human race will die out in another 100 years because the global warming deniers will continue to refuse to do anything to save the planet?

So if you want to know why I haven't been blogging much lately, well, it's probably because I'm too busy trying not to cry.

UPDATE: Ok, so apparently my ability to write firmly tongue-in-cheek, over-the-top nonsense has gone missing. Because the above was not intended to be taken as a reflection of my current mental state. It was a statement of exasperation, at the world, at writer's block, at life block. So, since this space is theoretically my rants and I always feel better after a good rant, I just went nuts, ranting about everything that's been bugging me lately. And while no one seems to get me (a topic for another rant), it did seem to have achieved the desired result of unleashing the creative juices.

2011-08-29T20:12:00.000-07:00

Mine is such an odd job. My ultimate goal is to put myself out of work. I don't want to have clients. When a verdict comes that does send a new case my way, I get depressed. When your job is to fight something you hate as much as I hate the death penalty, it's really a victory not to have a job at all. And I really hate the death penalty.

2011-08-19T13:38:00.001-07:00

The day so many people have hoped for for so long has come. The West Memphis Three are free. I first saw the rumor last night that the three had left prison for a local jail and that they had packed up all of their belongings. That was a remarkable turn of events. First, it was a surprise that they had a hearing set for today. Second, it is highly unusual for an inmate to pack up his cell before being transferred to a county jail for a routine court appearance. So we knew something big was coming.

Then the first thing I saw this morning when I got up was the news that they had, in fact, been released. They were out, free men. I don't know about the rest of you, but I know I am enjoying today's sunshine, my yummy lunch, pretty much everything just a little bit more today knowing that they are also free to enjoy these simple pleasures of life with their families, wherever they want to be.

I am pleased that this happened for them while they are all still young enough that they have some hope for a normal life. They are 36 and 34, all younger than I am. Damien Echols is already married. There is reason to believe they can still have children, find jobs, live life. Ronald Cotton, who co-wrote a book with the woman who wrongly identified him as her attacker, is the best example of what kind of life is possible after exoneration. I hope that these 3 will be able to follow in his footsteps.

Of course, their story isn't quite that happy right now. They are not going to be fully recognized as among the exonerated. They had to accept the bitter pill of pleading guilty (while maintaining their innocence) to secure their release. This plea is a sham, designed solely to save the state the expense of a wrongful conviction lawsuit and the prosecutors the embarrassment of admitting a mistake. And it's ridiculously unfair because no one in their shoes could have turned the deal down. It wasn't a plea they wanted to enter, but what still young defendant, having spent 18 years in prison facing either life in prison or the death penalty, could possibly have turned down this deal, knowing it came with the promise of release TODAY? I am confident I could not have turned that deal down, no matter how offensive it was to me to technically plead guilty to a crime I had not committed.

So these young men aren't entirely free. They are out of prison, but they're on probation. For 10 years. With the understanding that a probation violation can land them back in prison for another 21 years. I would hope that this will be probation in name only. That they won't truly face many conditions or any real possibility of revocation. But we can't know. I would like to think that many people will recognize them as exonerated, innocent, but we can't know that, either. Undoubtedly, there will still be many, many people who will view them with suspicion at best. Ask Tim Masters of Colorado how easy it is to find work even after full exoneration. There will always be people who cling to belief of guilt. Being on probation might make it more difficult for these men to build new lives if they are required to stay in the state of Arkansas, where it will be harder for them to escape the case's shadow.

But today, I don't want to dwell on the negative, on the bitter aspects of this release and the difficulties they will face. Today, I just want to focus on the fact that they are free, able to sit at a dinner table with each other and their families, able to hug their mothers, eat a steak, go see "Cowboys and Aliens," and sleep tonight on a real bed, in a dark, quiet room, with no one demanding they get up at 4 am tomorrow, and with the knowledge that for the first time in 18 years, they will wake up tomorrow to a world full of possibility.

- Posted using BlogPress from my iPad

Location:What a beautiful day

2011-08-14T12:34:00.000-07:00

This makes my day. Seeing as how a judge has already found that Dale Helmig's defense attorneys established his actual innocence and his conviction was only achieved through prosecutorial shenanigans, deciding not to waste taxpayer money prosecuting this guy for the murder of his mother, which he didn't commit, is definitely the right call.

But (you knew I wouldn't offer unreserved praise for a prosecutor, didn't you?), the dang prosecutor just can't quite admit that he really is innocent. She just can't bring herself to admit a fellow prosecutor went after the wrong guy. Even a prosecutor as challenged at going after the right guy as Kenny Hulshof. Nope. She just has to point out that there is no statute of limitations for murder. And she just has to insist that they will refile the charges if new evidence comes to light. All with absolutely no mention that they might have to look at the guy who probably is the real killer. (I'm not sure if that man, the victim's husband, is still alive.)

So, gee, that's that, Mr. Helmig. You've served 14 years in prison, you've been labeled the murderer of your mother, and you've undoubtedly lost pretty much everything you ever had. Job, home, money, basic material possessions (like favorite books or beloved record collections), and any pets you may have had at the time of your wrongful incarceration. And pretty much all because a prosecutor refused to play by the rules. (But, hey, he got a 12 year Congressional career and a sweet big firm job out of the deal, so it's not a total loss.)

But you're free now, so it's all good. You don't need the state to acknowledge your innocence to assist you in any job search or to allow you to live out your remaining years without this shadow of suspicion hanging over you. You should just be thankful the state isn't going to try to send you back to prison.

2011-08-14T09:58:00.000-07:00

Visit msnbc.com for breaking news, world news, and news about the economy

Oh good gravy. This woman can't answer a straight-forward question to save her life. She has said that being gay is being part of Satan, is bondage, enslavement. That to life that "lifestyle" is sad, a life full of despair. And that those who are gays or lesbians (or bi or trans) are dysfunctional and suffer from a disorder. But when confronted with those statements, all she will say is "I'm running for the presidency and I'm not judging." As someone who actively fights against anti-gay bigotry, I find her "answers" in this interview profoundly lacking. Not that she would ever have my vote, anyway, but come on. At least try.

How anyone can take this woman seriously as a candidate for the presidency is beyond me.

Rot in peace

2011-08-11T20:56:00.000-07:00

It's a little rare for a defense attorney to express glee at a criminal defendant receiving a long sentence. Usually, even if I agree a defendant is guilty and is a danger to society, I still overwhelmingly feel it's a tragedy for someone's life to be finished out in prison. I will make an exception in this case, though. This judge deserves every day of those 28 years, and probably a few more. (I've written about this case numerous times over the past two years, starting here.)

A judge who would screw juvenile defendants out of their rights to counsel and to trial deserves to be stripped of his own rights. (After he has received due process of law, of course.) And a judge who would incarcerate juveniles for his own personal gain deserves to be stripped of his own liberty. For good. I will not spend one second worrying about how difficult it must be for this well-educated man, used to receiving respect and deference, to now have his every move dictated to him by prison guards. I will not shed a tear for his family who now must celebrate birthdays, graduations, weddings, holidays, etc. without him. But I do sincerely hope that he spends every night for the rest of his life haunted by images of the kids whose lives he ruined.

See, I do have the ability to be mean and vindictive. But only with people entrusted with protecting the Constitution and providing due process of law who outrageously violate that trust.

I miss my mom

2011-08-11T20:41:00.000-07:00

No, she's not dead or sick or anything like that. She's just unavailable via text. And it's driving me nuts. Some people might think I don't have all that much contact with her because we don't talk on the phone much and we don't e-mail regularly. But, we text. A lot.

Back in high school, the tradition developed of the rant of the day. There was always something that happened at school that I just had to rant about when I got home. My English teacher said something homophobic. The Fellowship of Christian Athletes girls put up more "Jesus will save you" posters. The principal was threatening to censure the student newspaper. I was a socially and politically aware teenager, so I found things to be outraged about without even trying.

Naturally, this has continued over the years, though I no longer deliver my rants sitting at the kitchen table while she cooks dinner. (And, yes, I helped.) For example, when Law & Order had the awful, horrible, no good, very bad episode in which a defense attorney was sentenced to 20 years in prison for refusing to violate attorney-client privilege, my mom knew I was calling before her phone even rang. (FYI, I have never watched L&O since.)

Since we got cell phones, I have been able to give free reign to my rants, even if they are only 100 characters long. Anytime I have a random thought or gripe or interesting moment, I can just whip off a text to Mom. I always feel better after I rant to my mom. And in the case of a good tidbit, it feels more real after I have told Mom. There are a lot of things in life that no one can ever quite understand the import of more than your mother, having experienced almost every moment of your personal history.

But for the last week and a half, she has been out of text range. And so many, many things have happened in the past week that I couldn't tell her about!

I finally tracked down my childhood best friend on Facebook today and all I wanted to do was text my mom, "I found Susie Smith [not her real name]!" I went to tell Meryl and, try though she did, she just couldn't match the level of excitement my mom would have felt. Understandable as Meryl had never heard of Susie Smith before while Mom would know this was the girl I always coordinated my Halloween costumes with.

I couldn't get my garbage disposal to work. I was so frustrated, I wanted to cry. It would have been such a relief to be able to blast off a short text about it to Mom. I got it fixed, btw. All by myself. So the nice co-worker who dropped by this evening to help got 2 beers, 45 minutes of football on cable tv, and didn't have to get his hands dirty. Not that I could tell Mom about any of this.

The main thing we text our annoyances about, though, is politics. And there have been a lot of things to rant about lately! My governor turning down a $31.5 mil federal grant that will now just go to another state. The whole debt ceiling thing. And tonight, the Republican debate. I really can't listen to those candidates talk about taxes or gay marriage or abortion without steam coming out of my ears. Usually, I deal with this with a flurry of texts with Mom. But no such luck tonight.

Over the past week, I fear I have posted way too many links and status updates on Facebook and tonight I finally figured out why. I need my mom back! I need to be able to text her with whatever occurs to me whenever it occurs to me! I am undoubtedly annoying all of my friends. I am totally off-kilter. Because my #1 outlet is not available.

So Mom, please get back to your cell phone soon. And, so I don't lose any friends over my compulsive need to share ranty tidbits, please don't ever be separated from your cell phone again. Thanks.

UPDATE: She's back! I spoke to her for about 10 minutes today and told her all about my grade school friend and complained about the Republican debate and bragged about my garbage disposal triumph. All is now right with the world.

Every dog has its day...in court

2011-08-09T17:50:00.001-07:00

It's been all over the news this week, this story of a man convicted of rape appealing his conviction, citing as one of the trial errors the fact that his 15 year-old accuser had a therapy dog with her while she was on the stand testifying. Naturally, being an appellate lawyer, I pay attention. And as you might guess, I have some thoughts about the propriety of this sort of thing.

In some ways, a therapy dog isn't all that different from the legal ground we have already covered. We have argued about child witnesses (especially victims) holding a teddy bear or some other "comfort" item while testifying. We have argued about child witnesses having their parents in the courtroom while they testify or having an advocate sitting with them at the witness stand. There have also been other issues relating to making children as comfortable as possible when testifying: placing a screen between the witness and the defendant or having the child testify via closed circuit television from another room. So a dog is really just the next wave.

Those cases should provide the necessary legal framework for litigating this issue in the current New York case. Presumably, as in those other situations, the judge should make a pre-trial finding that the presence of the dog is necessary, taking into consideration multiple factors (age of the victim, stated fear at testifying, possibly an evaluation from a psychologist, etc.), and weighing all of the pro-factors against the danger of prejudice to the defendant.

So that's the way a court will look at it. But here's some of the main things I worry about. First, I hope that even if dogs are allowed, courts would be extremely cautious about getting the dogs in and out of the courtroom. Measures should be taken, wherever and however possible, to keep the jury from seeing the dog. Have the jury enter the courtroom only after the witness has taken the stand with the dog sitting in such a way that the jury can't see it. (In courtrooms I have seen, the witness stand is like a desk and is completely surrounded by a wood cubicle-type thing. So have the dog sit under the desk where it can rest its head on the witness' lap and yet not be seen.) If these dogs are as well-trained as they are supposed to be, I would expect barking not to be a problem. I know my heart melts a little every time I see a dog, so I think not letting the jury see the dog is important. (Unless the jury is entirely composed of cat people.)

My bigger concern, though, is that courts be mindful of what kind of allegations the defendant is facing. In some cases, it is entirely clear that a crime occurred, the victim was in fact victimized, and the only question is who did it. The Central Park jogger, for example. It's quite clear that she was attacked, brutalized, but she did not know by whom. Her testimony did not provide any meaningful evidence to identify her attacker(s). In that kind of case, perhaps a therapy dog would be somewhat less prejudicial. Regardless of who attacked her, we would expect reliving that evening would be traumatic for her.

The real prejudice comes in the cases where the question is did this crime occur at all? In so many sex cases, both adult rape cases and allegations of child molestation, it comes down to a he said/she said situation. The man claims the sex was consensual and suggests reasons for why the complaining witness would now allege otherwise. The father/uncle/family friend claims no impropriety while the child says he touched her. These cases don't usually involve much probative physical evidence. They come down to a credibility contest. Does the jury believe the accuser beyond a reasonable doubt? In these cases, allowing a witness to have a therapy dog (or a teddy bear or an advocate sitting behind her) can be devastating to the defense. Here we have the state and the court making it clear to the jury that this person is a victim. But that is for the jury to decide. No matter how much the court instructs the jury to disregard the dog, not allow sympathy to affect the verdict, or not read anything in to the court's rulings, the reality is that juries are going to be affected. One of the biggest blind spots in the criminal justice system is courts' refusal to acknowledge how juries actually work. So I fear no amount of instructing will stop a jury from being swayed by the subtle implication that the court has already determined the accuser is a victim in cases where that is precisely the question the jury must answer.

Are you ready?

2011-07-25T16:12:00.000-07:00

Our long national nightmare is over. The NFL is back. The season will go on. Phew!

I knew they would do this. I knew they would get a deal in place but in doing so would push the time-limit to the brink. But, still, I am my father's daughter so I couldn't help but worry. His mantra is hope for the worst, expect the worster (worstest?). So in true Johnson fashion, I couldn't help but fear that this lockout would drag on to mess up my fall. Nay, to be the ruination of my fall. (I really love football.)

But now the deal is in place, the lockout is over, and training camp will begin so the season can get underway on time. In just a few short weeks, I will be watching kick-off with my new football buddy and the reigning AFC West Champions.

If only we could have figured out a way to salvage the actual NFL season while canceling the fantasy football season...

Huzzah!

2011-07-21T17:36:00.000-07:00

Word is that new Defense Secretary Leon Panetta will certify that gays may serve openly in the armed forces tomorrow. That certification will then be signed by the President, of course, as he made repealing Don't Ask, Don't Tell (DADT) a campaign promise. And then based on the law Congress passed earlier this year, there will be a 60 day waiting period. (Why, I couldn't tell ya. Wasn't the certification supposed to come after military training? What else needs to be done, for crying out loud?) After which DADT will finally be relegated to the trash heap of history where it belongs.

I remember back in the days when DADT was first being passed. I was an idealistic, somewhat naive, college student. At that time, I had no idea that gays and lesbians were barred from serving in the military. I was appalled. I'm still appalled. Sexual orientation has never been, could never be, a valid basis for excluding someone from military service. Thankfully, the law of the land will very, very soon recognize that basic fact.

I think this news deserves a second Huzzah!

2011-07-19T20:55:00.001-07:00

Movies that were not shot in color should not have color added to them. Ever.

2011-07-18T21:36:00.000-07:00

I have had tremendous luck in a few areas of my life.

1) Education. I've never been rejected by an institution of higher learning. Which means I got to go exactly where I wanted to for college and for law school.

2) Work. Even when I up and quit a job with no back-up plan, things still worked out for me. And in February of my 3rd year of law school, I got offered my dream public defender job in my home state. That just doesn't happen in public defender land, so I felt keenly lucky to go through most of my last term of law school without worrying about how I would pay the rent once law school ended.

3) Housing. I have been downright charmed when it comes to housing. The situations my college friends and I fell into were unbelievable. Then I scored my carriage house, which has to be the absolute best rental in this entire town. And my house hunt went so well, with me finding this perfect house so easily.

But now I'm done. I have all my degrees, my dream job, and my cozy red house. Oh, how I wish I could translate the luck I've always had in these realms into other areas of my life because I could stand to have a little of that charm touch me right about now.

I can see clearly now

2011-07-16T10:25:00.000-07:00

I mean this quite literally and not as some metaphor for finally understanding life or anything. If you've seen me in the past 2 months, you've undoubtedly noticed me blinking a lot, rubbing my eyes, etc. Allergy season was rough this year. Really rough. It pretty much destroyed every one of my right contacts. (Last year, allergy season hit my left eye; this year my right. Why is that?) I'd been taking the right contacts out at night even though I've always worn the contacts you keep in all the time and never before had a problem. If I forgot and slept in them, they got so covered in allergy pus and got so distorted that I could hardly see in them. They got filmy and blurry and kept shifting in my eye every time I blinked, which just made me blink more. But somehow, I accidentally opened my last new right contact in May. So I've been making do with these distorted, icky contacts for a couple of months now.

Plus, for years my eye doctor has had to under correct on my right contact. When you're as blind as I am, the contacts only go up by .5 when what I really need is a .25 correction. So he's given me the .00 instead of the .50. Which has undoubtedly contributed to the general sense I've had the past two months that my vision was blurry and compromised. As a final point, last night I took my contacts out and evidently put the right contact case cap on the side with the left contact. My eye prescriptions are about 1.5 apart, so it was a pretty massive difference. Somehow, I drove to the eye doctor like this before I finally figured out my vision hadn't actually gone completely wonky overnight but that I must have put the contacts in the wrong eyes.

But now I have new, fresh contacts. And my doctor decided to try over-correcting on that right eye. He wants me to try it for a few days before finally deciding which contact prescription to order. And I am in heaven. Everything is so crisp and clear. Allergy season is over so I can go back to sleeping in these contacts. My eyes are ridiculously healthy and haven't changed in at least 7 years. (I mean they're healthy except for the extreme near-sightedness...) There is no way in hell my doctor is taking the higher prescription contacts away from me.

And as a bonus, I bought myself the first new glasses I've had in 7 years. Since my prescription has held steady for so long, I decided to spare no expense as glasses are an investment, not a short-term thing. So I bought the Chanel frames. (In my defense, they look really good on me and they're the only frames they had that fit my face just right such that walking down the stairs in my glasses will no longer be treacherous.)

Now if only I could get on that metaphorical seeing clearly thing...

Sarah's Proposed Prosecutor Rule: One strike, you're out!

2011-07-14T21:03:00.000-07:00

I'm confident that all of my dear, loyal readers are just dying to know what I think of today's events in the Roger Clemens case. (It doesn't cost any of you to let me believe it, anyway.) Just to make sure we all know what we're talking about, Roger Clemens is the All-Star pitcher, now retired, who is facing federal perjury charges. He was hauled before Congress back when they were investigating performance enhancing drugs. He is now accused of lying in that testimony.

I'm skipping over discussion of the worthiness of the charges or the use of performance enhancing drugs in baseball, so don't ask.

The trial began this week, with opening statements yesterday and some evidence presented today. In case you missed it, the judge declared a mistrial today. This came after the prosecution played in front of the jury a videotape that included references to something the judge had already ruled could not come in. The judge immediately halted the proceedings, called the parties up to the bench, and basically invited the defense to move for a mistrial. This was not the first no-no committed by the prosecution, either. In opening statements, the prosecution made reference to a different bit of information that the judge had also said was not admissible. So in the space of 24 hours, the prosecution blatantly disregarded two separate rulings by the court. The court granted the mistrial and preliminarily set a new trial date for September.

But there will be lots of litigation before then on the question that everyone was asking today. Does the prosecution get to try him again? The general answer is probably. The standards are not in the defense's favor. Double jeopardy does not automatically bar a new trial. But it isn't a completely clear point and the judge definitely has discretion to rule the prosecution cannot proceed. Where the prosecution goads the defense into moving for a mistrial, the court can find that a new trial could violate double jeopardy.

Thus we proceed to my rant. Because there is no question in my mind about what should happen here. The prosecution should absolutely be barred from further prosecution of these charges. They broke the rules. Twice. In a way that I have to believe was knowing and intentional. It's pretty darn hard to argue that the opening statement was an innocent mistake. And there is no excuse for them not to know what was on every frame of a video they were going to play for the jury. So if the prosecution refuses to play by the rules, why on earth should they get another chance to play the game?

Prosecutorial misconduct runs rampant in this country. A January issue of the New Yorker included a long article about it. USA Today did an in-depth investigation on it last year. Misconduct among the ranks of federal prosecutors goes on and on. So why don't courts do something about it? Why don't courts take it seriously and put a stop to it? They could. But they would have to actually dismiss some cases. You know, hold prosecutor's accountable for their actions and make them suffer real consequences. So why not start on this case, involving someone who didn't hurt anyone or steal any money. Because I am sick to death of seeing prosecutors intentionally violate the rules and then still be afforded the chance to win. These are people's lives, their money (for paying lawyers), and their liberty that they're screwing with.

Just once, I want to see a court say no. Tell a prosecutor we're not going to let you deny this defendant his fair and speedy trial by making him wait another month or two or however long before he gets resolution. We're not going to let you make him rack up tens of thousands more in legal fees. We're not going to let you put him through more months of worrying and wondering whether there is prison time in his future. Facing a criminal charge is hard and scary and emotionally draining. It's a big deal, for most people the biggest deal they will ever face. And you don't get to play games with their lives.

So, come on court. Declare this mistrial to be with prejudice. Don't let the prosecution get a second kick at this cat. Quite frankly, they don't deserve it. And we deserve to have a system that doesn't turn a blind eye to misconduct.

Update on the marriage pledge

2011-07-13T15:00:00.000-07:00

As of now, two Republican presidential candidates have refused to sign that Iowa marriage pledge.

Tim Pawlenty, the forgotten man, has said he prefers "to choose my own words, especially seeking to show compassion to those who are in broken families through no fault of their own." I certainly appreciate that nod to the idea that single parent families shouldn't be considered inferior. At least, I think that's what he means. But he did say he agrees with the principles behind the pledge, whatever that means.

And Mitt Romney, still the favorite even if Michele Bachmann has gained on him in Iowa, said he found parts of the pledge to be undignified and inappropriate for a presidential campaign. I like those comments, even though he also said he supported "traditional marriage."

I'm glad to see some candidates not just avoiding the pledge but outright refusing to sign it. My nonconformist streak isn't a fan of people signing onto things just because they feel obligated. And, of course, I hate the pledge so I don't want people signing it. Not that I'd ever be likely to vote for either of these guys for loads of other reasons, but they're sure ahead of Bachmann and Santorum in my book right now.

A mother always knows

2011-07-12T20:46:00.000-07:00

Can you see a difference between these 5 balls? Now, you might notice minor variations in color, but really, they're pretty identical, aren't they? And yet, to a silly little red cocker spaniel who shall remain nameless (Maddie), only one is THE ball. You can throw 4 of these 5 balls all day long and she'll just look at you with a look that says, "Come on, Mom. Throw the right one already."

This is how you know I'm a mom, even if it's to a 4-legged furbaby and not a human baby. Because I can tell you, just by looking, which one is the only ball this dog will bring back. I can also tell you which ball USED to be the ball, but has been overthrown. I feel kinda bad for the old ball. It's sort of like the Velveteen Rabbit once some other stuffed animal has come on the scene and become the new favorite.

And wouldn't you know, THE ball is the one with the most annoying squeak? Which I can hear right now. Because someone who shall remain nameless (Maddie) is pushing her silly little red nose into it right now, thereby letting it be known that it's time for me to come throw the ball.

Good luck, Brown family

2011-07-12T17:06:00.000-07:00

If you've been around here for a while, you might have caught that I have a bit of a weakness for certain kinds of reality t.v. And for some reason, polygamy has always been a topic that intrigues me. Not in an I want to try that kind of way. I just tend to watch news stories or movies about polygamy. And I've read the Jon Krakauer book and a book by a woman who escaped the Warren Jeffs group.

So, it naturally follows that I've watched every episode of TLC's "Sister Wives." I have been interested in learning about this family, getting a glimpse into their lives. Most of us picture the Warren Jeffs-type polygamists when we think of fundamentalist Mormons. The women with the weird hairdos and prairie dresses. The young girls being given away in marriage to creepy old men. The young boys being kicked out of the community and abandoned. But the Brown family isn't a member of that group. These are, for lack of a better way to say it, normal people, just like you and me. They just have different religious views on marriage. It's a view that wouldn't work for the vast majority of us (I know I'm not good at sharing), but it seems to work for them. It works well enough that they're comfortable putting themselves on television for all to see. Honestly, I have a lot of respect for them for being willing to put themselves out there so publicly as a way of defending their lifestyle and religious views.

They did so at a price, though. First, the family went through a publicized investigation by local police for suspicion of violating the state's ban on polygamy. While the husband is only legally married to one wife, the law in Utah still poses a problem for the family. The Utah polygamy law prohibits cohabitation in the guise of multiple marriages even if the husband has only one legal, state-certified marriage. So by holding himself out as married to 4 women, even though he's only ever sought one marriage certificate, Kody Brown is technically in violation of Utah law. Never mind that the whole family is happy, the kids are well-cared-for and well-adjusted, no one is committing welfare fraud, etc. The investigation stressed them out so much, they moved to Vegas.

Today, they made headlines for filing a lawsuit in Utah. (They haven't actually filed it, but are expected to do so on Wednesday). In the suit, the family is asking the federal court to tell states they can't punish families for their private, consensual conduct as long as the conduct isn't violating some other law, like seeking multiple marriage certificates. The argument builds on the 2003 decision Lawrence v. Texas that declared states could not outlaw consensual sexual acts between consenting adults. That case was specifically focused on homosexual sodomy, but protected a broader right to privacy.

I wholeheartedly agree with the Browns. They aren't asking to have the other 3 marriages recognized by law. They're simply asking to be allowed to live in peace, as one big, happy family. The rest of us don't have to understand their choices or agree with their religious views. But we shouldn't tell them they can't live this way. We shouldn't tell them they're not a family. And we sure as hell shouldn't put the father in prison and separate the wives from each other just because we think it's a weird lifestyle. That would seem to be especially counter-productive here where the family seems to be supporting itself just fine, but would be financially crippled by putting Dad in prison.

I'm sure courts will be hesitant to do what the Browns ask. The public view of polygamy is so negative because we do think of the FLDS style of repressive polygamy much more than the "Big Love" style. Courts will likely not want to strip states of any power they have to put a stop to the child-bride style of polygamy. Even though anti-polygamy laws had nothing to do with the prosecution of Warren Jeffs. He and his followers were prosecuted on good, old-fashioned charges of rape. But I hope that a court can see that anti-cohabitation laws don't serve any good and do run afoul of the Lawrence v. Texas idea that consensual adult sexual conduct cannot be criminalized. Because this family shouldn't be treated like criminals. I will definitely follow this lawsuit.

My least favorite part of that marriage pledge

2011-07-11T20:25:00.000-07:00

I'm sure you've heard about that marriage pledge from the Iowa group Family Leader. The group asked politicians and political candidates to sign on to the pledge, calling it a fidelity vow, so they could ascertain which candidates they should support. Of the Republican candidates for the presidential nomination, so far Michele Bachmann and Rick Santorum have signed on.

First, the pledge made a stir for some very unfortunate remarks Bachmann made about gays while speaking in support of the pledge. Clearly, the pledge is about opposing same-sex marriage and promoting the social conservative view of the "traditional" family of head-of-the-house dad, nurturing stay-at-home mom, and sheltered kids raised to be perfect little citizens. And so Bachmann made some comments about gay men being less healthy, etc. They were appalling remarks, of course, but they're almost expected from someone like her so didn't much attention.

The most recent flap has been about language not actually in the pledge but in the introduction to the pledge that suggests children born into slavery were actually in some way better off than African-American children born today. Because these children were born to two parents, unlike many children today. The cluelessness of such a comment is astounding. I don't know how far removed you must be from poverty, a life of servitude, or just humanity to think there's any way in which being born into slavery is better than not. (Really, did it not occur to the drafters of this language that being born with mommy and daddy there doesn't do you any good if you, mommy, or daddy can be sold away at any moment?)

So the Family Leader folks have acknowledged that poor choice of language and have removed it from their pledge. So all's hunky dory now! But, folks, there is so, so much more in this pledge to complain about. There's the comment that "enduring marital fidelity" protects vulnerable women and the rights of fathers. (Do I really need to explain that for the vast majority of our nation's history fathers had all the rights?) And there's the line about humanely protecting women from being "seduc[ed] into promiscuity." Egads! We need to protect women, and women alone, from being lured into promiscuity, which I'm guessing these people would define as having more than one sexual partner in a lifetime. But we don't need to protect men from seduction? What a backwards, 19th century view of sexual inequality. I think there's a lot of blog material to find in this part of the vow.

But here's my favorite, that no one else seems to have caught on to:

"Recognition that robust childbearing and reproduction is beneficial to U.S. demographic, economic, strategic and actuarial health and security."

Ok, so clearly seems objectionable from those of us with female reproductive systems who haven't chosen to spend our 20s and 30s barefoot and pregnant. But did you see the nugget in there that really set me off? Go back and re-read it if you didn't. I'll wait. Demographic. Robust childbearing is beneficial to U.S. demographic health and security. Did anyone else catch that? Did anyone see the same sly meaning to that that I'm seeing? Come on, WASPS! Have more kids. Have 'em quick because the Hispanics are gaining on us! Isn't that really what that line means?

I don't think it surprises anyone that I don't like any part of this pledge. I don't need political candidates to pledge marital fidelity to me. They don't owe that to me. And if they owe it to their spouses, presumably they've already made those vows. I disagree with the economic points of the pledge. And I strongly disagree with the point about appointing only judges who are "faithful constitutionalists." Not because I disagree with fidelity to the Constitution by any stretch, but because I disagree with what I know these people think that phrase means. I favor same-sex marriage and making divorce easy and keeping abortion safe and legal and I'm not opposed to pornography or a little casual (but safe) sex.

But this thing about the "demographic health and security" of the U.S. really pisses me off. That is one of the most insidious calls to racism and white power I have ever seen. And it seems to be working because I haven't heard anyone else mention that line. If there is some other explanation for what Iowa's Family Leader means when it urges Republican candidates to engage in robust reproduction to promote the "demographic" health and security of this nation, I would love to hear it. But I sure can't think of one.

My one and only NBA related post

2011-07-10T12:03:00.000-07:00

I'm not a big NBA fan. Somehow the NBA manages to take a fun game I love, full of speed, quickness, and explosive plays, and turn it into a lumbering, boring mess. But I do want to take a minute to say so long Yao Ming. He always struck me as a really decent person, so it was rough to see his career be so plagued with injuries. And they were so often injuries related to his size. His feet just broke under the strain of carrying his big, big body around. I hate to see a promising career cut short by injury, but way to handle it with class.

Dear Team USA

2011-07-10T11:40:00.000-07:00

While in hindsight I can appreciate the drama, I wouldn't object if you make your next game a little less nerve-wracking. Maybe score the game-saving goal with 5 minutes to spare instead of 1. Thanks.

Please don't make me talk to people.

2011-07-09T11:00:00.000-07:00

I have a confession to make. I don't really like people. And one of my biggest pet peeves is inefficiency. So despite my love of shopping, checking out is one of my least favorite things to do. Maybe not so much when I'm in a boutique and I've been helped by the clerk who is now handling my transaction and we've got a conversation going. But at Target or the book store or the grocery store, I get annoyed. I don't want to wait in line. I don't want to wait there while a sales clerk takes his or her sweet time or doesn't bag things in the most efficient way. And I really don't want to hear the sales pitch for why I should get a credit card or donate a dollar to the cause of the day* or whatever.

So I love, love, love self check-out. Love it! I'm faster than most check-out workers and I know I'll bag my things in a way that makes the most sense. (Yes, I realize I'm making myself sound a tad like a high-maintenance bitch, but I prefer to think I sound charmingly neurotic a la Sally Albright.) I would also really love it if some coffee shop would open up a self-service espresso machine because I'm an experienced barista and can get a little annoyed if someone doesn't observe proper barista protocol while making my latte. But I digress.

Because it's really best for all concerned that I do self check-out whenever possible, I am really glad I don't have to shop at Albertson's. They are phasing out self check-out! This article indicates that my grocery corporate chain, Kroger, is looking at phasing out self check-out in one of its Texas stores. Please don't bring that experiment to Kansas! Don't force me to have more human contact with strangers! There are days when the barista or the grocery store check-out person is the only person I speak to all day. On those days, I have no objection to going through a proper check-out line and getting my human contact. But there are other days, days when I am not fit to speak to people or days when I've just had an aggravating meeting or days when I'm just not in the mood to spend one second longer than I need to inside. And on those days, I really need the option of going in and getting out without speaking to anyone. (And, to be honest, there are some items one might prefer to purchase without having to hand those items over to another person who will then know what one is buying.)

How do you all feel about self check-out?

*I donate plenty of money and things to charity, but I don't like to do it in dribs and drabs like at the checkout counter.

Nobody tells China what to do

2011-07-08T19:52:00.000-07:00

When was the last time an entire country broke from the Catholic Church? Maybe this is on my mind lately because the book for book club last night was "The Six Wives of Henry VIII" by Alison Weir. But this story in the New York Times today amused me. Apparently the Catholic Church in China is not getting along with Rome so well these days. They're ordaining bishops without approval from the Vatican. That's a big no-no, so the Vatican has now started excommunicating those bishops. One so far, but presumably there would be more.

It's the kind of church intrigue I didn't really think happened anymore. At least not on the scale of an entire country. It's interesting to note that China's Catholic Church is run by the state. That really shouldn't surprise anyone, I guess, as the state has its hand in pretty much everything in China. So in a way, this feels like the Chinese government refusing to allow any other entity, even the leadership of the Catholic Church, tell it what to do. Kinda like when Henry VIII decided maybe he wasn't going to let some corrupt guy in Rome tell him who he could and could not unmarry. Wouldn't it be fun to watch the Chinese Catholic Church go through its own Great Matter and break from Rome? Or have I just read a little too much Tudor history lately and am therefore reading way too much into this?

A positive step in Texas

2011-07-07T21:05:00.000-07:00

I saw this good news out of Texas today, so I thought I would share. The state of Texas has now officially changed the way it handles photo line-ups in an effort to minimize the possibility of wrongful identifications. With the DNA exonerations, we learned a lot about the main factors that contribute to wrongful convictions. One factor that surprised a lot of people was eyewitness identifications. A large number of exoneration cases included eyewitnesses who identified the exoneree as the perpetrator.

For some time now, people interested in criminal justice reforms have been suggesting these changes to the way photo line-ups are conducted. They're simple suggestions that should be easy enough to implement. Have the person administering the line-up not know who the suspect is. Thus, the officer can't inadvertently or subconsciously guide the witness to picking the suspect. Show the witness only one photo at a time rather than six at once. This way the witness isn't comparing the suspects to each other. And make sure to tell the witness that the actual perpetrator might not be pictured. Just as a reminder to the witness that it's ok to pick no one.

I'll be interested to see how Texas police respond to these new procedures and to see more long-term research to see if these reforms do reduce rates of wrongful identifications. Since we know that the old ways don't really work as well as we wanted to believe, these reforms sure can't hurt.

My obligatory Casey Anthony post

2011-07-05T21:00:00.000-07:00

Ok, I've never said much about the Casey Anthony case, except that I was a little sick of it. A lot sick of it, actually. So I'm pleased that it is, mercifully, over. And in such a way that it will really never come back. There will be no appeal (I seriously doubt she will appeal the convictions of lying). There won't be a retrial. There will only be rumblings for a while and maybe an interview some day. But mostly, it's over.

And the only thing I really want to say tonight is this: Suck it, Nancy Grace! If you've been around these parts for any length of time, it's not a surprise that I don't much like Nancy. I admit I take random potshots at her in my posts. (She deserves them.) I don't trust her spin on cases, as in this case. If you think you know everything there is to know about this case from watching Nancy Grace, think again.

I haven't been following this case. I didn't mean to, anyway. But it was everywhere. It was hard not to pick up details. This case was so prevalent online and on television, it just seeped into my consciousness by osmosis. We've all been inundated by this circus for the last 6 weeks. I can't help but notice that the only 12 (well, 14 really) people on earth (slight exaggeration) who weren't bombarded by talking heads and pundits and in-depth analysis of every moment in court were the ones who reached the not guilty verdict. Maybe, just maybe, those jurors were in a better place to view the evidence without bias because they were the only people around whose judgment wasn't clouded by the media frenzy? Maybe cases really shouldn't be, can't be, tried in the media?

This verdict actually kinda restores my faith a little. Because since 2008, the media, Nancy Grace leading the charge, had convicted this woman. They had her practically on the gurney, needle poised above her arm. They splashed really unflattering, prejudicial photos of her everywhere while constantly shedding tears over that beautiful little girl. I thought Casey Anthony's presumption of innocence had died along with her daughter, quite honestly. So I am heartened to see that a jury of 12, uninfluenced by the media frenzy, can still uphold the presumption of innocence and hold the state to its burden. Because that's what this case came down to. The jury refused to convict based on emotion and hunches. They actually insisted on evidence, which is sorely lacking here.

And yet have the Nancy Graces of the world learned anything? Not really. HLN hasn't stopped covering this case yet. CNN and Fox News have still been covering it. And so far I have seen the pundits discussing what went wrong, who is to blame, etc. Geraldo said, in essence, "We all KNOW she's guilty, but knowing it and being able to prove it are two different things." One bold talking head on HLN did suggest that the media itself had a hand in turning Casey Anthony into a celebrity which in turn made it harder for a jury to convict her because juries have a hard time convicting celebrities. But I haven't observed any of them expressing any real respect for the jury's verdict, respect for the legal process, or sense that they themselves are the warped part of the system (as opposed to the jury).

I left for two hours to go to Knitting Club and just got back to find they're still going at it! They're all saying how outrageous this verdict is, how disgusting it is that the defense team had champagne at a bar after the verdict, how obvious it is that Casey is guilty. So, no, I guess they have not learned. They haven't learned that they don't get to decide before a trial whether the defendant is guilty. They don't get to expect a particular verdict because they have already evaluated the evidence and figured out the correct answer. There is only one way for establishing guilt in this country: a jury trial. And the jury has now spoken.

As a final note, I can't help but think if Nancy Grace is THIS mad, something has gone right in the world.

My biggest personality flaw

2011-07-05T20:31:00.000-07:00

Some days I feel very expendable. This is really something I have struggled with my whole life. It comes and goes, but I did have a good stretch of a few years there where it wasn't a problem. The last year has really been all about not letting this feeling take over, as obviously the events of the last year made me feel very expendable indeed. The week I broke my arm and had surgery oddly made me feel better as the 3 people I reached out to when I needed to schedule surgery all responded immediately. But this past week has been a bad one. It would be great if I could figure out how to get from week to week, day to day, without always questioning whether I really matter to anyone. I mean anyone other than my dog.

Who does this really work for? Other than Cinderfuckinrella?

2011-07-03T18:48:00.000-07:00

A few weeks ago, I complained about my state expending precious resources on a program to encourage marriage. Of course, knowing who is running this state these days, we knew the point was to encourage good Christian godly marriages. Probably wherein women are properly subservient to their husbands and all that.

And then I read today in the Topeka Capital Journal a little about some of the people involved in the initiative. Here's the one that caught my eye, aka made my head explode.

Wade Horn, who redefined President George W. Bush's faith-based initiatives in the U.S. Department of Health and Human Services, preached a gospel that encouraged poor women to marry their way out of poverty.

Wow. What a great message to be coming out of my state's Department of Social and Rehabilitative Services (SRS). Barely scraping by? Relying on food stamps and minimum wage jobs? Can't get out of a vicious debt cycle? Don't get job training or seek higher education. Just find a man to save you! (We'll just hope he's not an abusive SOB who will then use your inability to get a better-paying job as a means to aid in his control of you.)

Now, this guy is just one of many who met in a closed-door meeting to discuss this marriage initiative. Since the meeting was closed, we can't know if he spoke like this in the meeting or how others responded if he did. But I don't think it bodes well that this is one of the people the governor is hearing from. What a horrible, antiquated notion for us to return to: that women need marriage to save them. I would hate to think of my state promoting the idea that the best way for women to escape poverty and improve their economic standing is to get married and rely on a man. That would be a great message for my state to promote if they want to make it clear to Kansas women that they aren't worth as much as men (or without a man), that they can't take care of themselves, that bettering yourself means finding a good man to provide for you. Good grief.

I'm feeling peevish

2011-06-30T22:15:00.001-07:00

so allow me to note one of my biggest, never before mentioned pet peeves. I really, really hate being asked, "What are your plans for [tonight] [this weekend] [holiday x]?"

Unless you're inquiring because you're wondering if I'm available to do something, just don't ask. It can't lead to a comfortable conversation. Either we will wind up talking about our separate plans, thus highlighting that we aren't really part of each other's social circles. Or I will have no plans to speak of, which is never something a single gal wants to admit. If I have to spend another evening or weekend or holiday alone, at least don't make me say it out loud.

- Posted using BlogPress from my iPad

Rethinking shaken baby syndrome

2011-06-28T19:44:00.000-07:00

Frontline tonight covered a topic near and dear to my heart. They examined the growing suspicion about those convictions achieved under the theory of Shaken Baby Syndrome. Ok, so technically I haven't watched it yet. I got distracted and forgot to watch it. And by distracted, I mean I was sitting outside on my hammock with a beer and my dog. (Everyone should buy a hammock before dying. You will not regret it.) But I set the DVR to record the replay.

Anyway, I encourage all of you to watch it, and do your own research into these "shaken baby" cases. Fortunately, I have never had to handle one of these cases where a baby mysteriously dies and someone must be found to be responsible. I can't imagine the heartbreak of first losing a child and then being accused of causing that child's death. The defense bar has always been suspicious of shaken baby syndrome, but nobody much pays attention when it's just defense lawyers complaining about convictions. Finally, though, there is starting to be some real movement in the medical community towards acknowledging that shaken baby syndrome might not be what those who first came up with it thought it was. That the injuries associated with sbs can be caused by far less force than they had thought.

Of course, some people actually do abuse children, even to the point of death. But sometimes tragedies happen and no one is to blame. We need to be very careful not to confuse the two categories of cases. So the more light medical experts can shed on shaken baby syndrome, the better.

In which I admit defeat

2011-06-27T21:25:00.000-07:00

Oy, if anything will ever cure me of my "Something is wrong on the internet"itis, it'll be the Amanda Knox case. If you saw all the comments that came in on my lone post about that case, or even looked through some of them, you might have some idea what I'm talking about. Somehow, this case has spawned some of the craziest internet battles I have ever witnessed. There appears to be a group of people, not necessarily even connected to the victim or each other, who have made it their business to find every website that discusses the case and overwhelm them with comments. Those comments are filled with half-truths, misrepresentations, and outright lies. And then there are people on the pro-Amanda side and those two groups hate each other. With a passion. And they have this rolling internet battle that ranges all over.

So when the Amanda Knox "guilters" as others have dubbed them started coming to my quiet little blog and were soon followed by the pro-Amanda folks, I got curious. I'd always thought Knox was most likely innocent, that Preston book about the Florence serial killer strengthened that sense, but it's the insane ramblings of the guilters that have absolutely pushed me over the edge. They go around the internet, spreading the same lies, over and over. No matter how many times those lies are debunked. They keep claiming the evidence is more than what it actually is. And I can't correct every one of them. It's kinda driving me nuts.

What's most frustrating is how the lies have seeped so thoroughly into the national subconscious that even educated, well-informed people believe them. My friend, A, lives in Seattle and assumes that Amanda had something to do with it because of all the lies and varying stories she told. Except, she didn't. That's just a misconception that spread through the media. My sister, usually very well-informed on cases like this, seemed shocked when I said it wasn't even possible that Amanda was involved in the murder. Now maybe her shock was that I spoke in an absolute and I (usually) don't speak in absolutes. But I got the sense that it was more than that, that she's heard enough of the misinformation to have doubts.

Reputable news media is still, unfortunately, contributing to the misinformation. As Amanda's appeal heated up this week, I've seen stories on various cable channels and online. While they rightly say that the DNA evidence that allegedly tied Amanda to the crime has become suspect, they also helped perpetuate one of the biggest myths about the case. They said that there were now questions about whether Amanda's DNA really was on the murder weapon. But that knife wasn't the murder weapon. It just flat does not fit the wounds. Or the bloody imprint left by the knife at the crime scene. This random knife pulled from the drawer in Raffaele's kitchen had nothing to do with the murder. It would be nice if the media wouldn't call it the murder weapon when even the Italian prosecutors acknowledge it probably didn't cause the fatal wound.

Also, the BBC still has up and active on its website an article from December of 2007 that proclaims Amanda was lying about her claim that she was at Raffaele's house the night of the murder reading a Harry Potter book in German. The proof being that investigators found a German Harry Potter book at Amanda's house! As if there's only one Harry Potter book in the world... (How many copies do you have, M? I freely admit I have 3 Pride and Prejudices, 2 Emmas, and more Anne of Green Gables than you can shake a stick at. And I also have all of those on both my iPhone and iPad. As well as the Complete Works of Shakespeare. It's not that weird to have multiple copies of a favorite book.) So the BBC, one of the more respected news agencies in the world, still labels Amanda a liar. Except for this one thing: the police recorded it when they searched Raffaele's apartment in the week after the murder. And guess what is clearly visible on the video? A German Harry Potter book! (There are 7 in the series, you know.) So not only was she not lying, the investigators knew it when they released the photo of the HP book from Amanda's house, but still hoped the media would label her a liar anyway.

Now today there has been a lot of online chatter because there was a big witness testifying in her appeal trial today. The guy who actually committed the murder, shockingly, still refused to admit he did it and maintained he saw Amanda and Raffaele there. (Since that got him such a sweet sentence of only 16 years, did anyone really think he would own up now?) And on all of those message boards and comment-enabled cites, more of the same old nonsense is coming up. The footprints Amanda left in Meredith's blood (even though those spots tested negative for both blood and Meredith's DNA). The buying of bleach (didn't happen). The calling police after police had already arrived (except the time on the security camera used to reach that conclusion was off by about 10 minutes). The idea that she was a tramp who slept with 7 men in the 2 months she was in Italy (not true). And on and on and on.

It has reached a point where I have to admit I can't counter all the misinformation. And I know by posting this, I'm going to be inundated with more of it here. But it's driving me crazy. Because something is wrong all over the internet and I WANT TO FIX IT!!!

2011-06-26T20:04:00.000-07:00

I'm gonna go out on a limb and say Supreme Court Justices shouldn't go around physically attacking each other. Just when you thought the state of things in Wisconsin couldn't get any uglier or more divisive, we hear that one justice allegedly attacked another, putting his hands on her throat. (To some, it probably seems even worse because the allegation is that a man put his hands around the neck of a woman.)

Are we going to be resorting to duels soon? I hope they keep the physical assaults for conferences and leave the poor attorneys out of it.

Casey Anthony fatigue

2011-06-23T20:59:00.000-07:00

Oh, the Casey Anthony case is a clusterf**k. A circus. A sham. The kind of case that makes me want to rip my hair out, throw remotes across the room, and scream. And I'm not even talking about the evidence or guilt vs. innocence. I'm just talking about the process this case has gone through to get to this point, however many days deep we now are into the defense presentation of evidence.

The media storm has from day one made a mockery of Casey's right to a fair trial. Some television personalities have practically made a cottage industry out of this case. (Regular readers should know how I feel about the most prominent personality who has held this case in her mouth like a dog would a bone.) I've never had much faith in Casey's defense team, because I've always worried about their interest in media attention. There probably is a time and a place for using the media as part of a criminal defense strategy, but when in doubt, stay away. A defense attorney should definitely not speak to the media unless and until s/he has figured out the case, settled on a strategy, and has thought about how talking could help the case and how it could hurt. So, we've got my mistrust of the defense and then we have the judge getting so fed up with attorneys on both sides that he called a recess. I've seen plenty of heated exchanges between a prosecutor and a defense attorney but I've never seen one like that.

Now we've got the attorney for George and Cindy Anthony making inflammatory (and improper or even unethical?) statements about what his clients think of their daughter's innocence. I just saw him on Anderson Cooper trying to correct that problem. (And, no, there apparently is no news one can watch without seeing this case.)

I have no emotional investment in this case. I haven't much studied the evidence. I have no opinion. (Except, of course, that I don't want her to get the death penalty if convicted of murder because I never want anyone to get the death penalty.)

But someday, when I run law school, this case will be exhibit A on how not to conduct a criminal case. I might also encourage journalism schools to point to this case as the prime example of how not to cover a criminal case. For now, all I want is for this case to go away. I fear it can never be fixed or really fair because too much damage has been done. But it can go away and leave me to watch my Anderson Cooper in peace. Ooh, and as a bonus, maybe when this case does finally, mercifully, go away, the vacuum it leaves behind will suck Nancy Grace up.

Just because we can do something doesn't mean we should

2011-06-23T12:04:00.001-07:00

So that didn't take long. Only a few days after splashing Whitey Bulger's face all over the news, they caught him. In reading the NYT story about his capture, one thing jumped out at me. The United States attorney in Boston said that Bulger could not face the federal death penalty but that it was an option in cases pending in Florida and Oklahoma.

Huh? Would either of those jurisdictions really try to seek the death penalty against this man? He's 81 years old. He has already exceeded average life expectancy. Getting to an actual execution date could take at least 10 years. And if the Feds or Massachusetts get him first, neither state could even start the process for some time. So even best case scenario, he'd be 90 or older before he could be executed. I wonder what the odds are of him even living that long.

Surely reasonable people can agree that this is a case where pursuing the death penalty would serve no useful purpose. It would waste tremendous time and resources and is highly unlikely to result in an execution. Now, I'm sure the US attorney was just answering a question, so there is no reason to assume either Florida or Oklahoma are going to pursue the death penalty. But if a reporter asked the question, you can bet other people are thinking about it, too. And that reporters in those states might ask the same question of authorities in those states.

I hope that both states recognize they can make far better use of their resources than to seek the death penalty against this man. Between the 3 jurisdictions, I'm sure they can figure out how to keep him incarcerated for the remainder of his natural life. Given his age, he's going to die of natural causes either way, so those 2 states might as well save themselves the trouble of pretending otherwise. They'd be saving a whole heck of a lot of tax-payer money as well.

- Posted using BlogPress from my iPad

Keep the faith...out of the criminal justice system!

2011-06-21T21:40:00.000-07:00

I saw two stories today that raised in my mind the same concerns about religion being forced on people. By the court system, no less.

First, there is this case out of Mississippi where a judge faces disciplinary action for requiring individuals attend church services as a condition of bond. This particular judge isn't a lawyer (which seems like a bad idea to me) but the lack of formal legal education really can't absolve her of this error. Shouldn't we expect any judge to have a basic understanding of the Constitution, most specifically the Bill of Rights? One should not have to go through 3 years of law school to know the state cannot compel church attendance.

Then I saw this story out of my own state. Our Governor wants to connect every inmate released from prison with a faith-based mentor. It's enough to make me want to cry. I love the idea of personal mentors for every released inmate. The department of corrections staff just isn't equipped to provide that level of personal supervision for discharged inmates. The more personal attention parolees can get in transitioning from prison to the outside world, the better.

But the emphasis on faith is infuriating. This proposed program isn't out to rehabilitate parolees; it's out to convert them. Obviously, the faith-based mentors would not be, could not be, limited to the Christian faith. But it would be limited to mentors of some faith. Could I not volunteer to mentor a released inmate? I think I would be an excellent mentor, but I'm not a person of any faith, so am I out? More to the point, are inmates like me excluded from having a mentor? Or would they get mentors, but find themselves receiving a religion sales pitch when what they really need is job-training and advice on all the technological advances that have occurred since the last time they were on the outside?

The problem I have with faith-based initiatives is not cured by saying it's open to all faiths. Because faith-based initiatives are still not open to me. And by promoting faith-based initiatives, government is saying faith of any kind is better than no faith. But government doesn't get to say that. Frankly, this atheist is a little tired of being made to feel like there's no place for me or my kind in this state.

The idea promoted by the judge in Mississippi and my own Governor seems to be that turning to religion will cure all our ills. I would have hoped our judges and political leaders would have better, more substantive ideas than just turning to religion for everything. It's hard for this person of no religious faith to have faith that these folks have any good ideas of their own.

(Side note: please don't make the insulting mistake of thinking that people of no religious faith don't believe in anything. That point ought to be self-explanatory, but a nice, intelligent person once kind of blew me off by stating matter-of-factly that I don't believe in anything. I'm still kind of stunned that someone who knows me at all would say that to me.)

2011-06-21T18:48:00.000-07:00

Oh, Newt, what did you expect? With a name like that, you kinda had to know you were cursed, right? You have now turned your campaign into a newt. It will not get better.

If I liked you, respected you, and cared about your dignity, I would advise you to give up. Now. But I don't. So pass the popcorn because watching the implosion of your presidential aspirations is fun.

Confirmation that I'm hard core

2011-06-21T16:09:00.000-07:00

Two of my friends witnessed all of the critical moments of my arm break. They were there for the actual fall. They took me to the ER. Spent the night with me and took me back to the ER the next morning. They were there the day I had surgery. So they witnessed all of the worst moments, including the most painful of all, the lidocaine injection right before the external reduction.

One of those friends is a St. Louis native, so he's a Cardinals fan. (He roots for the Royals when they're not playing the Cards, so he's not all bad.) Thus, he saw when Royal Wilson Betemit broke Albert Pujols' arm. This Cardinals fan assures me that I was much less of a wuss when I broke my arm than Pujols was. I didn't cry or swear or throw things or stomp my feet. I just asked for some water and a trash can (because I felt so queasy) and calmly made my way to the car.

So there you have it. Confirmation that when it comes to handling pain, I am harder core than an All-Star baseball player widely considered to be one of the (if not the) best player in the game.

A simple, money-saving suggestion

2011-06-20T20:58:00.000-07:00

We spend a lot of money on our criminal justice system. Way too much money. And we spend our money in really stupid ways. We cut funding to education, Head Start, programs for at risk kids. We don't spend money on social services or mental health programs. And we couldn't possibly spend money on rehabilitation programs for inmates or ex-cons after they've been discharged. Spending money on those things would be cheaper than endlessly incarcerating people. Preventing crime is cheaper than dealing with the aftermath.

Then there's the fact that we have way too many crimes and incarcerate people for all kinds of silly things. But that's an entirely different rant.

The number 1 way we waste money on criminal justice? The death penalty, of course! Perhaps there is no better example of that than California. Where they have 714 people on death row but have only executed 13 people since 1978. California's system is just a big, bogged-down mess where they don't have anywhere near enough attorneys to handle the cases, among other problems. They've spent about $4 billion to kill 13 people. So just over $300 billion per death. Definitely cost-effective. And we all know how much money California has just lying around these days.

Might I respectfully submit, California, that you could really make a big dent in your budget woes by giving up on the death penalty? Commute all those 714 sentences to life. Stop pursuing new death sentences. Boom. Billions of dollars saved. You wouldn't need to find as many attorneys because non-capital cases don't require as many attorneys or as much expertise in the issues unique to capital proceedings. For the guys currently on death row, you'd cut half the issues out of their appeals. For cases yet to go to trial, you'd cut out a big phase of the trial and you'd eliminate the costliest part of the defense work, the mitigation investigation.

Unless you really want to go bankrupt, California, eliminating the death penalty seems like a pretty great place to start on your budget woes.

(And as a bonus suggestion, you might re-think your whole implementation of the three strikes law...)

Write away

2011-06-17T20:18:00.001-07:00

Back in February, one of my quirky friends told me about a writer's workshop she wanted to attend over the summer, asking me to join her. I said, "what the hell, I'm in!" The more I work on my writing, the more effective I can be in advocating for my clients, after all.

So I called up my college roomie, who I hadn't seen in years. She's a writer, too. Pretty much on the spot, she said, "what the hell, I'm in, too!"

So this morning, the three of us made our way to the pretty little college town, chauffeured by my quirky friend's man friend. (We ride in style like that.)

It's probably a good thing I'm here for the weekend. Maybe now I can learn how not to write juvenile, naive, uneducated, stupid little blog posts that display my inability to understand the intricacies of criminal law...

- Posted using BlogPress from my iPad

David C. Baldus

2011-06-15T21:28:00.000-07:00

Anyone who has studied the death penalty, follows the case law and research, has run across the work of David C. Baldus. My comprehensive exercise (comps), basically a senior thesis, in college was on the death penalty. Professor Baldus' work factored heavily into my paper.

I never met the man, never even came close. (If only I'd chosen Iowa instead of Wisconsin, but my heart was in Madison despite Professor Baldus.) But his work definitely affected me, inspired me. I couldn't let his passing go without comment.

In this time of sadness, I hope his family finds comfort in the fact that he did lots of good work on an issue he was passionate about. May we all be so lucky.

An ounce of prevention and all that

2011-06-15T19:07:00.000-07:00

I know my state has no money. I know something has to be done to address that. I know that my governor and legislature only consider one side of the ledger and will only make cuts. I am frustrated beyond belief that they will not even consider raising any tax, eliminating any tax credits or incentives, or basically anything that might cause more money to come into the state's coffers. I find it so frustrating because there is a dogged unwillingness to think about the fact that maybe, just maybe, by continuing to just cut, cut, cut, we're shooting ourselves in the foot. Cutting off our nose to spite our face. Any other similar cliche you can think of.

In the Wichita Eagle today, I saw this story about various groups focused on crime prevention begging the County Commission not to cut their funding. But the commission doesn't have much choice because the grant they get from the state was cut by more than 2/3. The county commission doesn't have much choice as they just don't have the money. But the state legislature had a choice. They didn't have to slash funding of the Juvenile Justice Authority to such a degree that the JJA had to make such drastic cuts in its grants to counties.

Of all the things to cut spending on, I can't think of anything more short-sighted than to cut funding to crime prevention programs that work. The state is going to pay for that short-sightedness some day. And we're going to pay a whole heck of a lot more than the crime prevention programs would cost now. Why couldn't we spend $1 million this year to avoid spending ten times that much down the road? How hard is it to understand that it's a lot cheaper to prevent crime than to prosecute and incarcerate criminals?

Muslim schools in the US: good, bad, or indifferent?

2011-06-15T15:57:00.000-07:00

This story on msnbc caught my attention. I confess, I hadn't given any thought to the idea of Islamic schools in the U.S., but it makes sense that they exist.

I am leery of any school built around a religion, Muslim, Catholic, or otherwise. I don’t think approaching education from one particular religious world view jibes with true academic rigor. That's my own bias toward religious schools, just to be up front about it.

Now, on to the point. I'm dismayed by the poll results at the end of this story. Over 60% of respondents expressed concern about the rise of Islamic schools in the US because it could encourage Muslim separatism.

I have to wonder: did anyone ever express that concern about Catholic schools and Catholic separatism? I know there was concern about JFK as a presidential candidate, that he would defer to the Pope. But certainly now, there is no such objection to Catholic schools that I've heard. The likeliest response is, "Well, Catholics don't blow people up." That argument for why Catholic schools don't raise the same concerns as Muslim schools might not go very far in the UK, especially Northern Ireland.

I don't think it's all that reasonable to fear that Muslim schools in the US could lead to a rise in Muslim separatism. We aren't talking about the kind of madrassas we've heard about in Afghanistan. But if non-Muslim US citizens react to Muslim schools with hostility and fear, well that just might create a self-fulfilling prophecy. The surest way to make a group feel like they're not wanted and thus separate themselves from the whole is, well, to tell them they're not wanted.

I think I have a new favorite judge

2011-06-14T20:28:00.000-07:00

Once upon a time, a judge presided over a trial at which one side presented absolutely no viable case and then issued a lengthy, thoughtful, well-reasoned decision ruling against the side that had no case. The losers, having had no evidence and no argument on their side, turned their attention to the judge. It must be the judge's fault their failure to present evidence or any sound legal evidence led to them losing! Bad, biased judge!

Remember that? The Prop 8 backers put on a horrible, terrible, no good, very bad case and lost to no lawyer's great surprise. They then pitched a fit because the judge was gay. Eww! Gays are icky and bad, they said. We nice, good, straight people can't possibly be expected to have our cases judged by one of them! Ok, that's not quite what they said. I'm paraphrasing.

So the Prop 8 backers got a hearing yesterday, a chance to explain why Judge Walker's "sexual proclivities" meant he should have recused himself. Actually, by this time they had actually amended their complaint to make it clear they were not concerned about his proclivities, but about his long-term same-sex relationship which necessarily gave him a greater stake in the outcome of the Prop 8 case. Because if Prop 8 were found unconstitutional, the judge and his honey could finally get married just like they always wanted. Not that they could show that Judge Walker was itching to get married. And, of course, if Judge Walker had wanted to get married so badly, it seems like something he might have done in that 18-month window of time when same-sex marriage was legal in California.

It was an obnoxious, disgraceful argument to claim that Judge Walker should have recused himself because of his relationship. Happily, it didn't take long for the judge who heard the motion to issue his decision denying it. You can read it here. But I just want to include this one section because I love it so.

Alternatively, Defendant-Intervenors contend that Judge Walker should be disqualified
because his same-sex relationship gave him a markedly greater interest in a case challenging
restrictions on same-sex marriage than the interest held by the general public. The Court rejects this argument on two readily apparent grounds. First, it is inconsistent with the general principles of constitutional adjudication to presume that a member of a minority group reaps a greater benefit from application of the substantive protections of our Constitution than would a member of the majority. The fact that this is a case challenging a law on equal protection and due process grounds being prosecuted by members of a minority group does not mean that members of the minority group have a greater interest in equal protection and due process than the rest of society. In our society, a variety of citizens of different backgrounds coexist because we have constitutionally bound ourselves to protect the fundamental rights of one another from being violated by unlawful treatment. Thus, we all have an equal stake in a case that challenges the constitutionality of a restriction on a fundamental right. One of the duties placed on the shoulders of federal judges is the obligation to review the law to determine when unequal treatment violates our Constitution and when it does not. To the extent that a law is adjudged violative, enjoining enforcement of that law is a public good that benefits all in our society equally. Although this case was filed by same-sex couples seeking to end a California constitutional restriction on their right to marry, all Californians have an equal interest in the outcome of the case. The single characteristic that Judge Walker shares with the Plaintiffs, albeit one that might not have been shared with the majority of Californians, gave him no greater interest in a proper decision on the merits than would exist for any other judge or citizen.

Amen, Judge Ware. Amen.