Tuesday, December 30, 2008

There have been some new developments in the case of the 8 year-old murder suspect. First, he's no longer 8. He turned 9 on Monday.

More significantly, the defense-nominated mental health expert filed a report finding that the boy is not competent to stand trial and is unlikely to be restored to competency within 240 days, which according to this article on MSNBC is the critical number of days. If the incompetent defendant cannot be restored to competency within that time frame, the case could be dropped with prejudice, meaning it could not be refiled. The prosecution's nominated expert has not yet filed his/her report.

It seems pretty unsurprising that a mental health expert would think a 9 year-old lacked the age and intelligence to understand a premeditated murder charge. In many states, the minimum age for filing criminal charges, even in the juvy system, against kids is 10 years-old precisely because no younger child would be able to comprehend the process and his or her role in it.

Of course, the natural follow-up thought is that if the defendant, by virtue of his age and intelligence, isn't competent to understand the charge of premeditated murder, he should also necessarily lack the ability to commit premeditated murder. Because 8 and 9 year-olds just aren't physically and emotionally equipped to think through decisions or to comprehend the consequences of those actions, at least not in matters of this gravity. A kid of that tender age who does something awful needs a kind of response that the criminal justice system just isn't equipped to provide.

Maybe (assuming the St. Johns authorities are correct and did shoot the two men) this case might soon get out of the criminal justice system and the child can get into the kinds of therapy and social support programs that might really be able to address his needs.

I wanna drive the Zamboni

A 22 year-old man in Portland took that classic Gear Daddies song to heart. But unlike the hopeful lad from the song, who politely asks the ice rink director if he can drive the zamboni only to break down in tears when he is told that the zamboni is one expensive machine that has been driven for years by Smokey, this Portland guy didn't ask so he wouldn't have to take no for an answer. As reported here, this guy broke into the Cumberland County Civic Center at 2 a.m. when no one could stop him from driving the zamboni. In case you weren't sure, yes, he was intoxicated at the time. And, yes, he's been charged with DUI. He apparently also operated two forklifts. So is that three separate DUI counts?

Monday, December 29, 2008

Things that make you go, "Well, Duh!"

Headline today: Many Teens Don't Keep Virginity Pledges. Here's the link to that shocking story.

How is that news? Did anyone seriously think that every single teen who pledges to wait until marriage honors that pledge? If there are, that might explain the real flaw in abstinence-based sex education. We can't just extract promises from teens that they won't have sex and think that ends the subject. They'll still have questions, lots of them, and they will almost all rethink that pledge at some point. Because teenagers won't magically stop thinking about sex if they sign a piece of paper or take an oath at a chastity rally. The pledge doesn't stop the crazy hormones from raging throughout their growing, changing bodies. And it doesn't act as a cure to the constant mind-changing and short attention span that almost always accompany the teen years.

Teenagers don't know what they want from one hour to the next, let alone what they can live with for the next several years. So it shouldn't surprise anyone that a lot of kids that promise to hold out until marriage don't actually make it that long.

Christmas goodies

I survived Christmas with my family. I survived the day at work (with some help from the coffee paraphernalia I received as gifts). And I am now happily relaxing on the couch, watching college football with my sweet pup curled up next to me. I am warm in my new comfy sweater and t-shirt combo. In the kitchen, 8 new bottles of delightful white wine are chilling in my sparkling new wine cooler. I fed myself well with a flank steak, seasoned with one of the meat rubs included in the large package from my cousins. I have just finished reading the one and only book I unwrapped on Christmas Day, a record low for me. (The book was "Testimony" by Anita Shreve. Not her best, perhaps, but like all of her books, eminently readable and compelling.)

I am washing my sheets so I can make up my bed with my brand new flannel comforter set, so I will be perfectly warm and cozy as I sleep tonight. Especially in my new pajamas, flannel pants and a cotton, long-sleeved shirt -- just the perfect combo for maximum comfort. Tomorrow, I will not wear the charming Ann Taylor suit my sister bought for me (on clearance, so she got it for a steal) nor can I wear the cute pants my mom bought me that haven't yet been shortened, but I have planned my outfit so I can wear the fabulous new coat I got.

So I got lots of good stuff for Christmas and I enjoy it all. We way overdo the gift-giving in my family, but I think it really is for the right reason. We enjoy picking out good gifts for each other and we can't often resist the temptation to buy one more thing because that sweater really looks like something Mom would like or Dad just has to have this book.

But just in case some of you still think I sound like a terrible, materialistic princess, let me tell you about the best gift I got. In my early life, Dad liked to take home movies. Once upon a time, we would watch them on occasion, but the camera died in 1984 and I don't remember the projector making the move when we moved in 1987. This year, Dad pulled all those old home movies out and had them all transferred onto dvds. We all sat down the day after Christmas to watch as a family and I've watched them once more on my own.

Some of these old movies I vaguely remembered, but there were some I had never seen before. First were clips of my dad at 3 and my aunt as a baby, with my very young grandparents. Then came my sister as a baby, with conclusive proof that the dog we had as little girls really didn't hate her. She has always believed Punky thought of her as the evil intruder, but in these movies, Punky is always licking my sister. And Punky never snapped at her, not even when the little one year-old took the dog's rawhide away as the dog was chewing on it. Punky simply waited a minute or two and then took it back when she had her chance.

We also now have visual proof that my mom, who does not much like little kids and who has always seemed a little unnatural when interacting with babies, was very natural in her displays of affection towards us. She has always been a great mom and I certainly never questioned her love for us, but I always kind of wondered if maybe she wasn't a little relieved when we got older and she didn't have to deal with toddlers anymore. But now I've actually seen her feeding us, playing with us, and picking us up whenever we demanded. (Of course, I'm a second child, so naturally there's a lot more footage of her doing these things with my sister. Second children always get the shaft when it comes to memorializing their development on film.)

We also now have available to us anytime we want to see it a short snippet of our much-beloved dog, Coco. Coco was adopted as a brand-new puppy when I was 9, just a few weeks after Punky was put to sleep. Coco belonged not just to my parents, as we always felt Punky had, but to all of us. She was a bichon frise, but don't dare try to write her off as an annoying yippy dog. She was the sweetest, most loving dog ever and no one who ever met her could resist her. She died over 10 years ago and I have my own sweet pup now, but just being able to see her running around our old backyard brings tears to my eyes.

But even that is not my favorite part of the DVD. My very favorite part is from my first Christmas. All four grandparents are present for the holiday. The camera, run by my dad, mostly followed my more-interesting 4 year-old sister, but he also showed me as my dad's mother handed me off to my mom's father. That grandfather, Grandpa R., died shortly after Coco did. He had suffered from MS since 1943, so all my life he had difficulty getting around, which just got worse as I grew up. I first remember him using a cane, but then he had to switch to a walker, and then a wheelchair. He didn't go out with us much, even to eat dinner. He certainly never took me to a basketball or football game, though we watched lots of them on t.v. Nor could he ever get down on the floor and play with us the way our other grandpa did. Because of his weak leg, it was hard for him even to hold us on his lap, so the only physical contact I ever really remember with him was lying next to him on his bed while watching sports and hugging him as he sat and we stood in front of him. But in this video, I can now see him holding me. And he's not just holding me while he's talking to the other adults. While he's holding me, I am the only thing getting any of his attention. He's looking down at me the whole time, even while the camera follows my more active sister. In the background, he is constantly talking to me and tickling me. I never doubted that he loved me, that his granddaughters were the light of his life, or that he was bursting with pride over our accomplishments. But this short little scene is proof that, when he could, he did give us the sort of physical affection little kids crave from their grandparents. It also reminded me how very lucky we were to have had him for as long as we did.

So that was my favorite Christmas gift. Not any fancy gadget or dvds or clothes. But I might well be wearing my cozy Irish sweater and drinking a glass of perfectly chilled wine the next time I watch any of it.

I may be up right now, but nap time is at 9:30, right?

In the past two weeks, between being sick and the holiday, I have gone to work one day.

This week is going to be brutal. I have a ton to do. I really need to buckle down and be seriously productive this week. But I don't remember how to do that.

I do remember how to sleep late. And how to be leisurely with my morning coffee while helping my mom with her crossword puzzle. And I'm now really good at finally showering and dressing around 11:30. But I may have forgotten how to get up and ready in 30 minutes, head to the office, turn on a computer, open Westlaw and a word processing program, read cases, and try to synthesize what I've read into a compelling argument on behalf of my clients.

Monday, December 22, 2008

Every PD should have a family like mine

Every year at Christmas time, I dread certain elements of my family dynamic. (Don't we all?) Dad will, as always, host history quiz time at dinner, so he can prove that even though I've got the law degree, he's more knowledgeable. I refuse to play, which then inevitably prompts him to declare smugly, "So you don't know the answer." Which just pisses me off even more. My sister will undoubtedly pick the same fight with me that she picks every year. It's pointless and it always revolves around the fact that I am the worst sister ever. Mom can be a little shockingly judgmental about the appearances of strangers in public places. And she doesn't always recognize how loudly she's expressing those judgments in public. These are the things I do not look forward to.

But there is one thing about my family that I never have to worry about. I will never, NEVER hear anything approaching, "How can you do what you do? How can you defend rapists and murders and child abusers? When are you going to switch to putting the bad guys away?" In fact, in my family I might get more harassment if I became a prosecutor. We've always been a defense-oriented bunch. My mom is an anti-death penalty activist. My dad holds a Ph.D. in American history. My sister may have gone right-wing on us, but she has stayed true to her pro-defendant's rights background. And she's pretty big on forgiveness and redemption.

If my work ever becomes the topic of conversation over the holiday week, I can rest assured that the conversation will not be contentious. I will not be put on the defensive. I won't have to explain patiently, hiding my growing anger, that I defend the rights of everyone; that appeals really are a necessary part of the process; or that a defendant who invokes his constitutional rights isn't admitting guilt. And no one will ever ask, "But isn't it hard to represent a guy when you know he's guilty?" Instead, if I go off on a rant about prosecutors or a bad court decision, I can be pretty confident that I'll just be preaching to my little choir of 3.

To have a family that really gets it is the best gift this PD can hope for. I guess I can live with the other stuff.

Friday, December 19, 2008

I am choosing to be optimistic about the fate of Prop 8

If that title left you wondering, my idea of optimism about Prop 8 involves the California Supreme Court declaring it unconstitutional as a matter of state constitutional law. That ruling would void the mean, hateful law and make its ruling unreviewable by the United States Supreme Court.

A couple of briefs were filed today that establish the arguments two key parties will make to the CA court. Today, the proponents of Prop 8 made it clear what they think should happen to the thousands of same-sex marriages that have been legally performed in the state. They think these marriages should be declared null and void.

I'm not going to stress out over the meanness of trying to use the court to take away rights that people have exercised and lived with. Because in the end, I think this argument by the Prop 8 folks will backfire. I actually think this argument by the proponents helps the opposition. The lawsuits seeking to overturn Prop 8 are attacking the amendment on a couple of angles that all basically stem from the same place: you can't use a straight-up popular majority vote to strip people of fundamental rights. I think the pro-Prop 8 brief, seeking nullification of all the legal same-sex marriages in California, helps to illustrate the anti-Prop 8 point. There are thousands of real Californians who have been exercising actual rights for months, rights fully recognized by the state. You simply can't take away existing rights from a select group of people on the basis of a 52% majority vote.

The other big development on Friday was the brief filed by Attorney General Jerry Brown (yes, Governor Moonbeam). He had previously indicated that while he personally opposed Prop 8, as AG, he would defend the amendment. But in the end, he couldn't do it. He just couldn't make the legal argument in defense of the amendment work. Because you can't use a majority vote to strip fundamental rights from a minority.

I already thought the anti-Prop 8 lawsuits should win. Today's briefs by the pro-Prop 8 folks and by General Brown only strengthened my opinion.

Not saying I told you so, but...

The Associated Press is agreeing with me that maybe the Adam Walsh case isn't so neatly closed as the police and prosecutors from Hollywood, FL want to believe.

Questions linger in Adam Walsh probe More than a quarter-century after his gruesome slaying, police say the murder case of 6-year-old Adam Walsh is closed. But did the man who confessed really do it?http://www.msnbc.msn.com/id/28314608/from/ET/

This guy confessed to lots of murders. In many, if not most, of those cases, police know full-well he didn't. His various "confessions" in the Walsh case sometimes matched what police knew and sometimes didn't check out. And there is no physical evidence to tie the suspect to the crime. The evidence that once existed, the suspect's car and a carpet sample with blood, have long since been misplaced. Finally, there is at least one other credible suspect, an individual known to be in the area at the time and with a name any of you would recognize. (I'm choosing not to use that name just as I've chosen not to use the official suspect's name.)

So the Hollywood authorities held a nice press conference and announced the case officially closed not because they had found new evidence that made an airtight case against the lead suspect, but because they wanted to make themselves feel better. The case was apparently bungled and mismanaged throughout. I don't know the extent of that bungling beyond the obvious loss of major evidence. (How exactly do you misplace a car?) If that evidence hadn't been misplaced, DNA tests could certainly be done and perhaps a case made against a suspect. But that didn't happen and it can now never happen. The Hollywood authorities have no one to blame but themselves. They should not now be allowed to throw a sham press conference naming their suspect, especially since they know that the dead suspect can't now defend himself and few others will try.

Free at last!

Miguel Roman will indeed be home for the holidays. He was finally released today, and without having to post any bail as I had expected. The court granted his motion for a new trial. I will never understand why he had to wait an extra two weeks for that decision. Now let's hope the state doesn't dawdle before announcing its intention not to retry Mr. Roman.

Thursday, December 18, 2008

No one ever taught her long-term financial planning

I'm kind of a disaster financially, so I can appreciate this woman's desire to keep her husband from discovering her spending excesses. But calling in a bomb threat while your husband is on the way to the bank probably won't fix your financial problems. Sure, it will temporarily prevent him from being able to check the account balance, until he drives to another branch or finds an ATM or checks the account online or by phone. But he will eventually find out whatever it is you're so desperate to hide from him. And your failed diversionary tactic will result in criminal charges for you.

I really think I would rather face my husband's wrath and have to sell some of my beloved shoes on ebay than do 3-5 in the state pen

Wednesday, December 17, 2008

Things that suck:

1) bronchitis
2) stomach virus.

Things that, when combined, pretty much make one lose the will to live:

bronchitis and stomach virus.

Tuesday, December 16, 2008

Solving crimes is easy when all we have to do is name the suspect!

So the Hollywood Police have declared the kidnapping and murder of Adam Walsh to be a closed case. They've solved it, after 27 years. So they say.

The problem is that the guy they've now publicly named as "the guy" is dead. This guy will now forever be known as the guy who kidnapped and decapitated poor little Adam Walsh. But he will never have the chance to defend those charges in court. Nor will he have the chance to make the state prove its case beyond a reasonable doubt. Given the tortured history of the investigation, I'm not so sure the state would be able to prove it, so gee, lucky thing for them that they don't have to.

If the police really believe they have the evidence now to establish that this guy is the killer, I'm all for them closing the case. I'm even ok with them explaining to Adam's dad, America's Most Wanted's John Walsh, why they are closing the case. But it just feels wrong to me to publicly declare this guy is the killer when there is no opportunity for him to respond to those charges.

Maybe I'm particularly sensitive to unfair treatment of suspects in this case because I so dislike John Walsh. He has not been a friend to the criminal justice system in his years of activism. I could rant quite a bit on his Adam Walsh Child Protection and Safety Act (read about it here), but that's a rant for a different day.

Monday, December 15, 2008

DNA is not the be all and end all of evidence, but this is a bit ridiculous.

The Chicago Tribune has this article about a Lake County prosecutor who is pursuing 3 cases despite the fact that the DNA results in all 3 cases point away from the defendant. I believe in all 3 cases, the DNA sample from the victim has not been matched to anyone. I certainly agree with the prosecutor's basic premise, that presence of DNA at a crime scene is not always forensically significant. That has been one of my concerns about the emergence of DNA evidence: that juries consider DNA conclusive proof of guilt without analyzing what the DNA really means in the particular circumstances of the case. Of course anytime any of my clients try to argue that his DNA is at the crime scene innocently, the argument is laughed at by the prosecution. But it is true that not all DNA located at the scene of the crime bears any connection to the crime itself.

Still, this guy is taking it a bit far. The semen found inside the rape victim's vagina isn't probative of who raped her? Well, the semen doesn't match the man the prosecutor is sure did it, so the semen must not be related to the rape. It would seem to me that if the victim had had consensual sex in the days before the rape (the theory the prosecutor espouses to explain the non-matching semen), someone probably would have gotten that information out of the victim in the 20 years since the attack. And then it should be pretty easy to test the DNA against the known sexual partner.

Even better is the case of the raped and murdered 11 year-old girl. When that DNA sample didn't match the prosecutor's suspect, the prosecutor called that DNA a "red herring" because the girl could have been sexually active. That seems pretty un-prosecutor-like to besmirch a murdered child like that. At the very least, the presence of semen in her body is evidence of a crime because an 11 year-old girl can't consent to sex. I don't think there's any real reason to think her murder isn't connected to the sex abuse. I'm sure the state assumed the sex and murder were connected until the DNA came back excluding the defendant.

This prosecutor pre-determines his suspects and then interprets the evidence in whatever way is consistent with guilt of the suspect he's already picked. He would rather rely on eyewitness identifications, bite mark nonsense, and shaky confessions (all big contributors to wrongful convictions) than to rely on the best evidence in sexual assault cases. Just because he's sure he's got the right guys so that best evidence must not be relevant in these cases. That's the worst way to conduct an investigation and prosecution. Considering how desperate every state and local economy has become of late, it's maddening to me that a prosecutor would recklessly and blindly pursue his own theory on these cases in spite of the evidence. With any half-decent defense attorneys, these cases all have built-in reasonable doubt. Especially if the prosecutor pisses off the jury by suggesting that a sweet, murdered 11 year-old girl must have been having sex with someone other than her rapist and murderer.

I'm tired of hearing complaints about the costs of indigent defense and hearing about draconian cuts into indigent defense funding but never, ever hearing anyone questioning the way prosecutors spend money. It's not in the county's financial interests to pursue trials that can't result in guilty verdicts. And it's not in the county's personal interests to push charges against the wrong guys while the right guys are still roaming the streets. The good news is that the comments to the article are almost universally critical of the prosecutor. Maybe this prosecutor won't be able to keep his job if he continues to pursue his own idea of justice that doesn't take into account the evidence.


King Carl is dead! Long live the king!

After screwing the once proud Kansas City Chiefs into the ground, Carl Peterson has finally, FINALLY resigned! He won't be able to piss off our best free agents into signing with other teams. He won't be able to blow our draft or screw up signing those draftees.

But if the Chiefs still suck next year, we'll have to find a new whipping boy. King Carl has been the target of angry Chiefs fans for several years now. It would be disappointing to learn he really wasn't the source of all our problems.
In law school, they always teach you the most important practice tip for any litigator is this: be nice to the clerks! I've always taken this to mean all the court personnel: the support staff, the clerks office, the court reporters, and the judge's assistant. So I try to do that. I've always tried to work with them, to be as cooperative as possible, to say "thank you" at every opportunity. But, sometimes it's hard to follow through on that practice tip when those court personnel are dismissive, disrespectful, and on pointless power-trips.

As you might recall from Friday morning, I was not feeling well, but had an appointment to drive 2+ hours to deal with exhibit issues. I stopped in at the office to check my e-mail and voice mail. By the time I got to the court, it was about 1:00. Only one person was in the judge's chambers, the court reporter.

I told the cr who I was there to see. She told me that assistant was out ill that day. The cr was clearly not expecting me. Grr! So this woman just plum forgot about the out-of-town attorney who was making a special trip to come down that day? Didn't tell anyone else? Didn't make any arrangements for the worker who was in the office to help me out? I think the court reporter just expected me to walk away and come back next week. Once she figured out that I was not going to leave that easily, she was very helpful in figuring out where the stuff I needed was and setting me up so I could review it all.

But, man, I kind of want to yell at that other assistant. Why should I bother being nice to you if you can't be bothered to remember a simple appointment?

Saturday, December 13, 2008

Another Body Blow to the Death Penalty

For my 200th post, I get to post good news. The other day, I posted about the Death Penalty Information Center's report that both executions and new death sentences have decreased in the past few years, reaching lows not seen in over a decade. Yesterday brought one more piece of anecdotal evidence to show that the death penalty is falling out of favor.

Brian Nichols was in court facing a rape charge when he shot and killed a judge, court, reporter and sheriff's deputy, then fled the scene and killed a federal agent before taking a woman hostage. That hostage situation lasted several hours before ending remarkably peacefully. (On a side note, the way that woman handled herself and him is remarkable as she came out of the situation with nary a scratch. And she got him to be taken into custody without any more shots being fired.)

The Nichols case has been pending for several years, repeatedly making the news for the astronomical costs of the case. Defense attorneys have been relentless in seeking the money they needed to adequately defend their client's life. There was never any question of contesting whether Nichols was the shooter. Instead, this case was always about mitigation: what was the appropriate sentence? One judge had to be recused from the case after publicly expressing frustration with the defense because there was no defense here. Well, we can't really blame the defense for the case going to trial, though. (Not that any defendant should be precluded from holding the state to its burden at a trial, but that's not the point today.) Nichols had offered to plead to the murders and be sentenced to life without the possibility of parole in exchange for the state dropping pursuit of the death penalty. The state refused. So who is really to blame for the costs here?

This article in the Atlanta Journal Constitution talks about how much the defense of Brian Nichols cost. The costs of defending Nichols almost brought to an end the state-wide public defender system that Georgia had only created in the past few years. (I'm not finding the exact year, but it was definitely created after 2000.) By late 2007, the state's legislature was refusing to fund the indigent defense system fully, forcing the system to slash 41 full-time jobs. Cases throughout the state, especially about a dozen capital cases, face delays because of the defender system's lack of money. Defenders need money to pay for evidence testing, track down witnesses, etc. And of course the attorneys actually need to be paid a little something, too, so they can eat and pay the rent. Apparently, though, the Georgia legislature thinks it's outrageous when public defenders defend their clients too zealously (or eat or pay rent).

But I don't recall ever seeing any article question the cost of the prosecution. I would like to see an accounting of the state's costs on that side, because generally the prosecution side has more to spend. If the defense cost $2 to $3 million, surely the prosecution cost at least $3. I guess any money spent trying to execute a scumbag is money well spent, but any money to defend the guy against state-sanctioned murder (even if equal to or less than the cost of the prosecution) is just a waste of taxpayer dollars. But if the state had just accepted Nichols' offer to plead guilty and accept a sentence of life without parole (the exact result the trial rendered), the state of Georgia would have been saved a huge chunk of money on both sides. No witness fees, no jury fees, no court personnel occupied for 7 weeks as the trial progressed. All of those prosecutors and police and defense attorneys who dedicated 7 weeks of their time to the trial itself (not to mention the hundreds of hours that went into the prep) could have been working on other cases. All those man hours translate directly into taxpayer money.

I say Friday's verdict vindicates every single penny the defense spent. There were really only two outcomes for this case: death or life. So the defense won all they really hoped to win. A big cheers to the hard-working attorneys whose only goal was to keep their client alive. Well done!

The state, meanwhile, ought to take a good, hard look at itself. And the people of Georgia who are upset about the costs of this case ought to question the wisdom of the state's rejection of the plea offer. Did they really think they should just be allowed to kill Nichols without any resistance? Did they really think they should just be allowed to put on their side of the trial and have nothing presented by the defense? Of course defense attorneys are going to challenge a death sentence. Of course they're going to put on a case for mitigation, and it won't just be a quick case for show. They're going to do their absolute best to try and convince a jury to spare their clients' lives. And judging by the recent trends, those dedicated defenders seem to be succeeding. If juries really do start returning fewer and fewer death verdicts, that will just add more pressure to the state not to pursue it, especially if the defendant volunteers to take life without parole.

I'm sure yesterday's verdict isn't the death knell for the death penalty, but it is another chink in the system. I think most people would have assumed that a man who shot up a courthouse, killing a judge and a sheriff's deputy, and then killed a federal agent in an escape attempt would have been sentenced to death. But this jury said otherwise. And the entire country can see how much it cost just to get to the point of a jury declining execution. And we can all see that this exact result was offered to the state many hundreds of thousands (even millions) of dollars ago. So I do think this is very encouraging news for those of us in the abolition movement.

Now if only we could get the public up in arms about how much money the state wastes by pursuing the death penalty instead of only thinking about it in terms of those damned defense fees.

Friday, December 12, 2008

Today is not the day

Today is so not the day for me to wake up with post-nasal drip. (Is there a more unpleasant body dis-function than post-nasal drip?) I really can't be fuzzy-headed today. Congestion isn't going to work for me. The sensation of burning shards of glass blazing down my throat every time I swallow will just distract me from the task at hand. And generally feeling miserable is not an option. Can I please re-schedule the beginning of this cold until tomorrow?

See, today is the day I have to drive two hours to deal with the judge who may or may not hold a major personal grudge against me. (Guess I'll find out the answer to that question today.) If there is a grudge, or if this judge feels like being difficult even if it's not personally directed at me, I could deal with it much better if I didn't feel like crap. Going in already feeling defeated makes me an easy target for any judge or staff who want to make my life hell. And since I'm seeing a judge, I can't just wear nice, comfy jeans with a thick sweatshirt and warm shoes. I think I can get away with wool pants and a nice sweater, but there's no way around the heels today. Ordinarily, I don't mind heels, but I'm not sure teetering on two inch heels is such a good idea when my brain feels disconnected from my body. And once I'm done, I still have the two hour drive back home.

Tomorrow would be fine. I could be sick starting tomorrow. I'm not unreasonable. I know I'm probably due for a cold; I just want it to hold off until I'm done with today's task, a task that I have not been looking forward to. I have no court appearances or due dates next week. I can be away from work all week next week if necessary. So, cold, can you just go away right now and come back tomorrow? Well, if you're leaving now, maybe you can just wait until Monday? No need to ruin my weekend.

Thursday, December 11, 2008

And the most overused phrase of 2008 is...

Let [insert name] be [insert name]!

The McCain Campaign was exhorted by frantic Republican bloggers to let Sarah Palin be Sarah Palin. The media desperately wanted that same campaign to let John McCain be John McCain.

Sports announcers urge coaches to let the star player be himself.

Today, CNN urges all of us to let Michelle Obama be Michelle Obama.

Is there some grave threat to human autonomy of which I am unaware? Is some evil conglomerate trying to replace us all with Stepford-like robots? Are we being invaded by body snatchers? Turning into pod people? Or are pundits, journalists, and bloggers just too unoriginal and lemming-like to express themselves without resorting to hackneyed phrases? I'm going with that last one.

How about we all agree to let everyone be themselves and to stop using this silly phrase? Good.

Is the Death Penalty Dying?

I certainly hope so. The results for the past year suggest it may be. Per this report, executions for 2008 dropped to a 14 year low and the lowest number of people were sentenced to death since 1976. I know in my state, two men were spared death by juries who found them both guilty of a capital murder. I don't recall a jury from that particular county ever before passing on the opportunity to sentence anyone to death. I count that as anecdotal evidence that supports the existence of the trend the report says is occurring nationwide.

I like the general trend and so I choose to go to work today feeling optimistic about the future of the death penalty. In case I haven't mentioned it before, I really, really hate the death penalty.

Wednesday, December 10, 2008

Miguel Roman Freedom Watch

Miguel Roman is still behind bars. As of yesterday's Hartford Courant article, no hearing date is yet set. I have been checking news feeds for any updates to the case, so I feel comfortable that this has not changed as of now. According to a Connecticut t.v. station web site, Roman's family is hopeful he will be home for the holidays. I am choosing to believe they know more than I do so have at least some basis for their optimism.

Meanwhile, Pedro Miranda was arraigned on Monday for the murder Roman was convicted of. The family of "Roman's" victim apparently thinks the state got it right with the charge against Miranda. From their quotes in the Courant, I don't think the state will receive any opposition to releasing Roman from the victim's family. So what are you waiting for, State?

I'm not even asking the state to commit to dismiss the charge against Roman (though for the sake of their case against Miranda, it would seem that eventually they'll have to admit Roman's conviction was wrong). I'm just asking for an appeal bond. Just agree that he can be released on his own recognizance. He's been in prison for 20 years, so he doesn't have any money or a passport. Not much of a flight risk. And in my experience, guys who have spent 20 years in prison for a murder they didn't commit are usually pretty eager to attend that court hearing where the case is officially dismissed. So I really doubt there would be any problem with him failing to appear for any future court dates.

So, really, it'll be ok. Just agree to let him go home in time for Christmas. You wouldn't make an innocent man stew in prison on Christmas Day, would you?

More broken record Troy Davis musings

Troy Davis' case was heard by the 11th Circuit Court of Appeals yesterday. I have previously written about this case here, here, and here. This case has been a roller coaster of execution dates and stays.

Yesterday's hearing was about Davis' claim of actual innocence. In general, it has been said that actual innocence is not grounds for appeal. From this report, it appears that much of yesterday's court hearing revolved how a defendant would make an actual innocence claim and what his burden of proof on that claim would be.

For many, Mr. Davis' innocence claim is not a strong one because there is no DNA pointing to another perpetrator. There is still at least one eyewitness who maintains that Davis was the shooter (though that eyewitness told police when he was first interviewed that he could not identify the shooter). So, no, Mr. Davis probably can't prove his own innocence beyond a reasonable doubt.

But, you know what? At this point, the state wouldn't be able to prove Mr. Davis' guilt beyond a reasonable doubt, either. There is, and has always been, another viable suspect. That suspect, Coles, says Davis is the shooter. Davis says Coles is the shooter. Davis' attorneys have located three other witnesses who say Coles confessed to being the shooter. And 7 other witnesses who testified against Davis have since recanted. So the case is a mess.

If we just look at the evidence against Coles, I am confident that many prosecutors across the country would be more than willing to charge Coles with the murder. And, obviously, once upon a time, a jury heard enough evidence that they were able to find Davis guilty beyond a reasonable doubt. But the jury that found Davis guilty didn't hear any alleged confessions by Coles or any of those recantations. If tried today, either man would be allowed to present evidence pointing to the other, so I'm not sure the state would be able to obtain a guilty verdict against either man now.

Yet, the state is still probably going to be allowed to kill Troy Davis. Because proof of actual innocence is not grounds for appeal (thank you, former Chief Justice Rehnquist), so surely Mr. Davis' proof that the state wouldn't be able to prove his guilt beyond a reasonable doubt if the case went to trial tomorrow won't be considered grounds for granting him relief from his death sentence.

Tuesday, December 9, 2008

Sometimes the hard part of doing the right thing is knowing what the right thing is

Today, I learned something very troubling about one of my favorite restaurants. The owner has been indicted on federal charges of harboring aliens and forcing them to work for him. The allegations are pretty awful. Forcing immigrants to work long hours, 6 days a week. Making them all live in one small, cramped apartment. Holding the workers' identifications and passports so they couldn't leave. Authorities began investigating after finding an immigrant dead in this apartment. The man had died of acute pneumonia.

I've eaten at this restaurant a lot. Every time anyone suggests we eat there, I jump. My first reaction to today's news is to feel sick that I have contributed to this situation in any way. I have given this owner my money. I have accepted service from these indentured servants without having any clue as to their plight. I don't ever want to eat there again. I can't look this owner in the eye again without showing my revulsion for these abuses.

But then my defender kicks in. No one has been convicted of anything. These are only allegations. I have dedicated my career to promoting the presumption of innocence. And I have long counseled against imposing penalties on people just on the basis of charges being filed. It's way too easy for anyone to be charged. I have seen enough to know that police and prosecutors can make innocent people seem obviously guilty in a well and salaciously-written affidavit. How many times have I read the police reports and come away with a very different picture of things than I got from that affidavit? They never put any of the exculpatory stuff in the affidavit. I know that it's wrong to judge guilt from the one-sided version we hear in the early days of a criminal proceeding.

This man could be just an innocent immigrant caught in the anti-illegal immigrant tidal wave. It would be a grave injustice if false allegations ruined this man's life and destroyed his livelihood. On the other hand, if he really has done these things, I don't want to give this man one more dime of my money. So, which way do I go? Do I continue to eat there until the criminal justice system does its thing, running the risk that I continue to finance the restaurant version of a sweat factory in my neighborhood? Or do I stop eating there, running the risk that I am contributing to the financial destruction of a wrongly accused man?

Giving "The Biggest Loser" a whole new meaning

Well, crap. Evil Vicky made it safely to the finals. I was so, so hoping that she would fall below the yellow line and then the viewers would get to vote for which of the two below that line would go to the finals. And the vote would be an overwhelming vote against Vicky because I think she is the most universally audience-disliked contestant this show has ever had. But it was not to be. Bummer. Icky Vicky could actually win this thing, which would just make my skin crawl. I think if she wins, the live audience will boo. I'm not a fan of booing, but boy would I agree with the sentiment.

I think the real question that I must look deeply into myself to address is this: why on earth do I care this much?

Monday, December 8, 2008

Women, look after your own hearts

Because evidently, we can't even count on our doctors to do it. I remember around 15 or 20 years ago, Oprah first brought to my attention the disparity between the level of heart care men and women receive. I remember there being a book called "Outrage" or with that in the title, but I am not finding it on amazon right now. The crux of the study was that heart care was totally male-centric. Treatments weren't tested on women. Women's symptoms are often different from men's so doctors weren't recognizing the onset of a heart attack in female patients. In fact, doctors were more likely to pooh-pooh women or think they were exaggerating symptom claims. Obviously, the hope of the study's authors and publishers was that the medical community would learn from its poor treatment of women and improve.

But, according to this report, nothing has changed. Women still don't get proper care and diagnosis. Women in hospitals are 12% more likely to die from massive heart attacks while in the hospital than men. Doctors are slower to provide women treatments that restore blood flow. One of the most basic treatments for heart problems is aspirin. Giving a patient a stinking aspirin is something even people at home know to do, but for some reason women under a doctor's care are way less likely than men to get that home remedy. Doctors simply are still not aggressively diagnosing and treating women's heart disease.

What the hell? How is this still happening? According to The National Coalition for Women with Heart Disease, heart disease has been the leading cause of death in women since 1908. Doctors and hospitals are still mis-treating women for the disease that has been our leading cause of death for 100 years. Since 1984, more women than men have died of heart disease each year. And women are twice as likely to die from a heart attack as men. (All stats from www.womenheart.org ) According to a 2005 study by the American Heart Association, only 8% of primary care physicians knew that heart disease kills more women than men. Even more appalling, only 17% of cardiologists knew!

Let's be clear: this isn't a women's issue or a feminist issue. This is a human rights issue. This is an issue for all of us, men and women, to be up in arms about. It's all of our mothers who aren't receiving adequate care. (Bias alert: my mother has personally suffered inadequate heart care, resulting in a heart attack. Fortunately, she is still kicking 10 years later, but I'm still angry when I think about what she was put through.) We have to demand better. We have the right to expect that our doctors (especially our HEART doctors) know the ins and outs of diagnosing and treating the number one killer of women.

I thought enough was enough 15 years ago, but evidently the medical profession didn't think so. I naively assumed doctors would take that study and learn from their mistakes when it comes to treating women's heart health. My mistake. I hope they get the message this time around. This is not a situation where women can afford to wait another 15 years for the third time to be the charm.

Sunday, December 7, 2008

My new week resolution

Today I realized that I have allowed disorder to reign throughout my life for too long. When late fall and winter roll around each year, I tend to descend into chaos because I just don't seem capable of doing anything when it gets cold and dark. So pretty much from the time I get home after work, I lack the energy to do anything but sit on my couch. My dear friend who for some unknown reason likes to clean stayed at my house this weekend. He organized my kitchen to a degree it hasn't seen since I first moved in, if then. And you know what I discovered? I like it. I like it a lot. I was so inspired, I even washed my dishes as soon as I was done with dinner, instead of thinking I'll get to it later but then getting so comfortable wrapped in my blankets on the couch that I can't bring myself to get up and go into the cold kitchen so I wind up not getting to it until tomorrow. Maybe, once the dishes are done drying, I'll even put them away before going to bed. That would be crazy for me, but it would make my grandma proud, wherever she is. (No, it wouldn't make her proud so much as it would make her say, "I told you so!" Her neatnik, put-everything-neatly-in-its-place-before-retiring-for-the-night gene did not make it down the line to my mother or me.)

I think I have some orderliness momentum now that I have to pounce on when I get to work tomorrow. And I think perhaps my lack of order at work has been one of the reasons I have had such a hard time focusing on the massive caseload that is threatening to swallow me whole. I feel like I have been drowning in work, which has made it almost impossible to see a starting point. But I have to get control before I really do go under. So here is what I will do:

1) I will catalog and organize the gigantic case that has taken over almost every corner of my larger-than-the-piles-make-it-seem office. In so doing, I will also make sure I really do have everything I need and that no issues are being overlooked. All good.

2) I will return all my statute books to the shelves where they belong and get rid of the superseded ones that I truly do not need. What is the point of having a bookcase if all the books are scattered on every available desk surface?

3) I will do all my filing and close out those cases that can be closed, which will also involve finally resolving the open question of where my little sub office's closed files will be housed (being housed in a stack in my office isn't really working for me anymore).

4) I will actually use my filing cabinets instead of storing all my various work product in piles throughout my office.

Maybe if I do all this, and continue to keep my kitchen orderly, I will stop feeling like a failure as a lawyer, as a housekeeper, and just as a person in general.

These are not Gilbert and Sullivan's pirates

Those Somali pirates are getting more brazen. Today, we get reports that they attacked a cargo ship off the coast of Tanzania. So they're branching out from the waters just off Somalia. Earlier attacks had gone as far south as Kenya, the country immediately to the south of Somalia. Tanzania is the country immediately south of Kenya.

The pirates attacked the cargo ship with rocket-propelled grenades. That sounds like it would be pretty scary for the crew. So far this year, pirates have attacked 100 ships in this area, successfully hijacking 40 of them. I think I would much rather be attacked by Captain Jack Sparrow than by these guys. This situation is just nuts. I hadn't realized there were still pirates in the world. I guess it really doesn't affect me as I don't plan on trolling the waters off the east coast of Africa anytime soon, but still, I'd rather live in a world that didn't have pirates, except my nice happy, basically good guy pirates, like Captain Jack or the Pirates of Penzance who were always too busy singing lustily to be any good as pirates and who really didn't want to hurt anyone anyway.

You may also have heard about the luxury cruise ship that was attacked by pirates, but successfully outran the bad guys. My dad was very eager to point out to me that when he and my mom take their cruise around Australia and New Zealand later this winter, they will be on that very ship. I kind of like knowing that my parents will be in the hands of a captain and crew that took on pirates and won.

Saturday, December 6, 2008

Let my people go!

One of my continuing complaints about the criminal justice system is how casual the judges, the departments of correction, the jails, the prosecutors, and even sometimes the defense attorneys can be about a defendant's time behind bars. Prosecutors maybe don't think about the bond implications when they charge the highest severity level crime they can possibly charge. They're not the ones who have to spend two nights in jail waiting for a Monday morning court appearance because the jail can't set a bail amount on a felony, even though the felony charge was never going to survive a probable cause hearing. Court clerks don't sweat it if they don't get around to finishing a bond screen before shutting off their computers at 4:30. They still get to go home to their families for a home-cooked dinner, unlike the poor schmuck defendant who has to wait another night. And when they do get around to doing it, there's no incentive for them to do a full investigation into the defendant's ties to the community, because if they set that bond too high on false reasons, well it doesn't affect their plans one bit. And, hey, what's one more night in jail to the guy who has already spent three nights there?

I've known of clients sitting in prison for weeks after an appellate court has overturned the conviction because even though there's no valid sentence, the department of corrections is reluctant to just release the guy without giving the county sheriff the chance to come get the guy so that county can begin re-trial proceedings. In fact, in my state, there is no communication between the appellate courts and the department of corrections so when a conviction is overturned or a sentence is vacated, no notice is sent to the people holding the defendant that they no longer have any authority to hold him. Now, as a zealous defense attorney, I take the order from the court to the DOC, but I am still shocked to realize that there is no official channel for this notification. Shouldn't both the appellate courts and DOC be a tad more concerned with making sure defendants aren't held in custody even one day longer than they should be?

This morning, I read this story. The story seems benign enough: a man, Pedro Miranda, has recently been charged with three murders from the 1980s. The slightly less prominent secondary headline reveals that a man convicted of one of those three murders, Miguel Roman, is still in prison and hasn't been granted any relief as of yet. The Innocence Project has filed a motion for new trial on his behalf, but it has not yet been ruled on. The article on msnbc does not provide any information on whether the prosecutor opposes that motion. (Gideon, you're in Connecticut. Do you know anything more about this case?)

According to the article, new DNA testing has excluded Roman, the convicted guy, as a contributor to the DNA found at the murder scene. The article implies the murder involved a sexual assault, but isn't explicit on this point. Miranda's DNA was connected to two of the three old murders he has now been charged with. Again, the article is not explicit, but the implication seems clear that Miranda's DNA matches the DNA found in the victim Roman is in prison for murdering.

The prosecutors feel strongly enough about their case against Miranda in this murder that they have charged him despite the fact that another man has already been convicted of that crime. To most criminal defense attorneys, that looks like built-in reasonable doubt, so the prosecution has to have some stellar evidence. And yet, Miguel Roman remains in prison, where he has been since June of 1988. Why? That article does not include any hint that the prosecution is going to try to claim that Roman and Miranda acted together in murdering Carmen Lopez. So if you think you can prove that Miranda did it, don't you necessarily have to concede that Roman didn't? And if he didn't, why the hell is he still incarcerated?

I think people in the system have bought into the notion that a guy like Roman has already spent 20 years in prison, so what's one more week while we straighten things out. There's no sense in rushing. But that's just wrong. It's hideously insensitive to the individual defendants who have to endure that extra week. Miguel Roman has spent 20 years in prison for a crime you have now concluded was committed by someone else. Allowing Roman to spend one extra hour behind bars is unacceptable.

Time spent behind bars is not pleasant. (Ok, that's an assumption on my part, as I've never been arrested, but I think it's a pretty fair assumption.) It's loud and brightly-lit, so proper sleep is difficult. There's no privacy, even for the most private of bodily functions. Inmates can't even wear their own clothes; they have to wear nasty jail scrubs, often in whatever size the jail folks feel like giving them. It's about as de-humanizing an experience as any person can endure. So we shouldn't be so careless about making people spent an extra night or week or month behind bars. If a guy is unjustly behind bars, there really isn't any time to waste in getting him the hell out.

I apologize for the exceedingly cheesy title of this post. It popped, unbidden, into my head and once there, would not leave.

Mourning my morning

Mornings are rough for me. I don't wake up feeling refreshed and ready to go. I never spring out of bed. On weekdays, it's a persistent alarm clock that forces me out of bed. On weekends, the chore falls to a persistent pup. On my ideal weekend morning, I sit on the couch with a blanket around me, still in my pjs, with a big steaming mug of coffee, my pup contentedly sitting on the back of the couch gazing out the window, my laptop on my lap, and ESPN's weekend preview coverage.

I was doing well this morning. Blanket and pjs, check. Coffee, check (Kona blend today!). Pup not pestering me, check. Functioning laptop, check.

Until I turned on the t.v. All I see, on every channel, is "One Moment Please. This channel should be available shortly." But I don't have one moment. The delicate balance that is my morning will be upset by even one second of non-cooperation from any component of my ideal morning. I managed to avoid panic while I turned off the cable box and turned it back on. "One Moment Please." Now the panic began to set in. I hurriedly called the cable company before I lost all ability to form actual words. The nice lady I spoke to had a very pleasant voice, sort of the voice I imagine the "One Moment Please" would be said in if it were an audio message. She tried and tried, but she could not make my cable work. I am not part of the cable outage area, so swear her techie gurus. So there is just something uniquely wrong with my cable line. But ... but ... [here it's beginning, the inability to form words] wha- [yep, there it is] ... how... [then a full thought broke in] Jayhawk basketball game at 2!!! And I have no cable!!!

I am surviving. The cable guy will get here when he gets here. There is nothing more I can do right now. I will get through this. After all, I still have my coffee and blanket and laptop and contented pup. I'm even kind of enjoying the quiet. And by 2 p.m., surely I can pull myself together enough to face the outside world and watch the game at a bar.

UPDATE: Cable crisis is fixed. There was nothing wrong with my cable. My silly houseguest had unplugged the cable amplifier, located in the guest room. When he finally joined the land of the living and I informed him of the cable outage, he confessed his sin, replugged the amplifier, and thereby restored my cable. Phew! Jayhawk game can be watched in the comfort of my living room.

Thursday, December 4, 2008

Still not making nice

Natalie Maines, lead singer of the Dixie Chicks, has once again found trouble by speaking her mind. Of course, there was the famous "we're ashamed of George Bush" line that resulted in hate mail, organized burnings of DC cds, radio stations refusing to play DC songs, death threats, lots of public criticism from Toby Keith, and a big, shiny Grammy for the Chicks' song response to the whole thing. [Bias alert: I'm a huge DC fan, love the album they released after this whole kerfuffle, and was thrilled when they won that Grammy for the song "Not Ready to Make Nice".]

Now, Maines, and the other two less vocal Chicks, are being sued for their support of the 3 men known as the West Memphis Three. The case has been a high profile case since three teenage boys were convicted for the 1993 murder and sexual assault of three boys. Though one of the teens confessed, many supporters have subsequently come to believe that the three teens were railroaded because of their interest in heavy metal and the occult. (Because those types of things were such reliable indicators of guilt in the Tim Masters case in Colorado...) There have been rallies, a documentary, appeals, and new DNA testing in the case, all of which garnered media attention.

The West Memphis Three supporters and their lawyers have focused suspicion on the stepfather of one of the three victims. At a rally in Little Rock, Natalie Maines alleged this stepfather was involved in the killings. And now he's suing her for defamation. Interesting.

Maines is hardly the first person to cast suspicion on the stepfather. A documentary was made about this case several years ago. I haven't seen it, but I've always thought the documentary certainly didn't exclude the stepfather as a possible suspect. As long as I have been aware of this case, I have known that the stepfather was the target of defense claims that the three teens were innocent. So why has the stepfather chosen to sue Maines and not the dozens of other people who have floated him as a suspect?

Perhaps Maines is just an easy target in the south, where a lot of country music lovers have not forgiven her for her "unpatriotic" comment. And she's a deep pocket. So maybe he thinks he can get a jury filled with people who hate her to give him some of her money. It would be difficult for him to sue everyone who has publicly accused him of involvement, so she's a convenient target that will get him publicity.

As a criminal defense attorney, I have proudly and loudly proclaimed the name of the guy I thought had really done it in an effort to defend my innocent (but still, sadly, convicted) client. I would do it again without hesitation should the opportunity arise. But am I civilly liable for defamation if I do so? Obviously, I wouldn't be as fun a target to sue. A suit against me wouldn't get you on ET or CNN and I certainly do not have deep pockets.

I guess the question here is when is it acceptable to make a public statement accusing someone of being involved in a crime and when is it defamation of character? Lord knows, the general public doesn't often shy away from accusing the obvious or chief suspect within days or hours of a crime occurring, usually long before they really know anything about the facts. I once had a client convicted in the court of public opinion before there was even any confirmation that a crime had occurred. I really don't know anything about this area of law, beyond what I studied in law school many years ago, so I think I'll follow this case just to see if I can learn about any limits the law might place on me or my clients' family and supporters when we think someone else did the deed.

I doubt I'll change too much about what I say in defense of my clients, though. I doubt Natalie Maines is going to start shutting her mouth, either. I hope not. The Dixie Chicks are probably due to start working on a new album.

Kenneth City Update

Kenneth City, Florida's city council meeting last night was not a fun experience for the city council or the city attorney according to this report. After a heated, 3-hour meeting, the city attorney agreed to redraft the neatness proposal, excluding the troubling provision that would have allowed city officials to enter houses for inspections. But from the story, it sounds like he didn't agree to this willingly. He was evidently defensive, critical of news reports, and at times scolded angry residents for protesting instead of thanking the city council for trying to improve the town.

Oy. It seems to me like perhaps the city attorney himself is the petty tyrant type I was worried about. Part of his agreement that the inspection language could be removed was based in the fact that town officials already had authority under state law to enter homes or businesses if they had probable cause to suspect those homes or businesses were in violation of the neatness ordinance. I assume he's referring to search warrants? You know, the authority required by the Constitution to search people's homes?

The article today, though, makes it sound like the city council still intends to pass some kind of neatness ordinance. I really wonder what that says, what standards it sets for how neat the interior of a home has to be. I'm not gonna lie -- I'm not the best housekeeper around, but I don't think my city ought to be able to cite me as an ordinance violator because I don't wash all my dishes right away. I wonder how much the residents of Kenneth City are letting slide on that issue because they were so understandably incensed by the inspection provision.

Wednesday, December 3, 2008

Well, technically...

O.J. Simpson's lawyer says O.J. should get a lenient sentence for his robbery and kidnapping convictions because he's a first-time offender. I don't think I would have led with that argument.

Why I don't live in Kenneth City, FL (and you shouldn't either!)

"Kenneth City delays decision on neatness ordinance"

That's the headline from the St. Petersburg Times online. Faced with falling property values in recent years, the Kenneth City city council has proposed a 26 page ordinance aimed at cleaning up the town. The ordinance addresses both exteriors and interiors, going far beyond simple prohibitions of rusting cars on blocks in front yards. The residents of Kenneth City aren't entirely clear on the full ramifications of the ordinance because the public "workshop" wasn't well described or promoted, so was not well attended.

The most jarring part of the proposed ordinance is the provision that would allow city officials to "inspect" the interior or any home or business. Umm, what? A city council member or police officer or city clerk can come into my house and do a white glove test? The first article I read about this made it sound like city council members were irritated with city residents who were so offended by this proposal. What on earth did they expect?

I understand that some houses can reach public nuisance levels and pose risks to the public health. I once lived near one of those houses that had the 70 animals and was therefore filled with the resulting animal waste. The house was filled with trash and disease-carrying bugs and it smelled bad. I don't object to city ordinances that allow cities to deal with those exceptional cases, assuming the city can go through the proper channels of presenting probable cause to a judge and acquiring a search warrant authorizing entry into the home.

But to write into an ordinance that city officials can enter any private home or business at any time?? That's insane. It's blatantly unconstitutional for a city to grant itself the authority to enter any and all homes in the city at will. It's shocking that a city council, and that council's attorney who drafted the ordinance, fail to comprehend the obvious constitutional violation. Surely this ordinance, or at least the inspection portion of it, could never pass muster in any court.

Just imagine how ripe such a provision would be for abuse. A city official with a grudge could wreak havoc on an enemy's life by inspecting day after day. (And let's not any of us pretend that we don't know people like that who would misuse this kind of authority. There are a lot of petty tyrants running amok in municipal bureaucracies.) But my main concern is what cops could do with this provision. Suspect someone's making meth but don't have sufficient probable cause to get a search warrant? Hey, inspect the house! You'll probably get lucky and find lots of incriminating evidence in plain view! Cops could so easily use this provision to get inside the home or business of any suspect. What an end-run around the 4th Amendment the Kenneth City Police would have.

I do not understand why the Kenneth City city council thinks writing it into law that they can go into any house they want when they want is a good idea. Do they really want to be subjected to intrusive inspections of their own homes? Well, whether they really do or not, I am glad to see that the residents of that small city have stood up en masse to say, "No, no, and hell no!"

Monday, December 1, 2008

I've heard of a cat burglar, but a dog burglar?

The sweet cocker spaniel and I went to my parents' house for our mellow, adult, 3 person Thanksgiving celebration. Wednesday night is steak night at the country club, so Dad insisted we go out to dinner. With some trepidation, Mom allowed the sweet cocker spaniel to have the run of the house while we were out. I insisted she would be fine and cause no trouble. In fact, I thought her only activity in our absence would be shifting from lying on her left side to lying on her right.

As we left the house, Mom did what she always does: she set the house alarm. We had a lovely dinner then took a leisurely drive home so I could see the damage that had been done to my neighborhood by a tornado this summer. In the car, Dad's cell phone rang, but he didn't get to it. Then Mom's phone rang, but it was in her purse on the floor of the car so she didn't answer it. She was pretty sure it was just my sister, anyway. Then Dad's phone rang again, and it was my sister. Hearing only Dad's end of the conversation, it quickly became apparent that she had received a call from the alarm company that something was happening at the house.

I had a frantic 20 seconds or so, picturing my sweet cocker spaniel trapped in a fire, feeling betrayed because her mommy was not there to save her, or being brutalized by mean house burglars who didn't appreciate being greeted by a tail-wagging dog who licks. About the time that the house came into view, clearly intact and with no obvious signs of problem, Mom figured it out.

"We set the alarm with a dog inside the house!" Mom and Dad aren't used to having a pet in the house and I didn't realize the alarm had such a sensitive motion detector. Any movement in the house will set off the alarm. Obviously, Maddie didn't know the code to turn off the alarm. So the only trauma my poor dog had endured was having to listen to the alarm go off for several minutes just because she had the nerve to go to the kitchen to drink some water.

3 cops greeted us on our driveway. (I'm such a PD, my first instinct on seeing the cops was to tell them they couldn't come in to the house!) They insisted they wanted to go in first and clear the house, but I insisted all they would find was a 16 pound cocker spaniel. Indeed, Maddie was alone in the house (the cops did wander around just to be sure) and did not appear to be up to anything. Her only obvious interest at that moment was greeting me and sniffing the 3 strangers who came in with us. But maybe that wiggly-tail act was just a cover for whatever nefarious acts she committed while we were gone.

My parents have not reported any missing valuables or meat.

Amazing offer! Call now!

As many of my readers know, I am a rabid Kansas Jayhawks basketball fan. I just can't get enough of the defending national champions. Evil ESPN and the cable conglomerates know it and aren't afraid to exploit my addiction for their monetary gain. ESPN wants to launch a new network and the cable company wants to have a high profile network on its second tier of programming so folks like me will subscribe to more than the basics. And ESPNU was born.

Last season, one KU game was on ESPNU. We all just went to a bar and had a rockin' good time, foiling the evil plot. So this year, they put at least 3 KU games on the fledgling network. The puppet masters got their wish today as I gave in and called the cable company this afternoon. Consequently, I am happily sitting on my couch wrapped in a blanket, with my laptop, a glass of wine, and my pup while the Jayhawks have a double-digit lead over Kent State. I have also enjoyed surfing through all the new channels that come with my new tier of programming. Who's heard of Chill? I don't even know what that network is, but I found an episode of Twin Peaks on it, so I think I'm gonna like it.

The other thing I have discovered is the commercials that come with this new tier. The Hallmark Movie Channel and the Game Show Network don't have the car and fast food commercials we're used to from the big networks. They don't even have the commercials for local businesses and restaurants we see on basic cable. Instead, we get 30 second infomercials.

These are commercials for new, exciting, and inventive products that will revolutionize the way you [use your notebook computer] [chop vegetables] [eavesdrop] [lie on the couch]. Your life will never be the same! You will be instantly and irrevocably happy if you buy this product. Your elders will respect you, children will worship you, and puppies will love you. You will realize how empty your life was before you took advantage of this amazing, just for t.v. offer. And if the people in the commercials are any indication, you will look like a resident of Stepford. (Seriously, where do they find these actors and how do they all plaster that vague, bizarre smile on their faces?)

And, of course, if you call RIGHT NOW, we'll throw in this other, slightly less impressive but still amazing product for free. But wait, there's more! We'll throw in a second set for free! You'll get two ultra amazing doohickeys and two merely amazing thingamabobs for the price of one! That's a gazillion dollar value for the amazing low price of $19.95 (plus shipping and processing for each item...). We're practically giving them away! It's ridiculous and we're surely losing money, but this product is just so AMAZING, we wouldn't feel right not sharing it with the whole world.

Doesn't it seem that if these products are really that amazingly amazing, the manufacturers ought to be able to get more money for them? I get the idea these might be cheap pieces of crap from China that they desperately need to get some money for because they've ordered thousands of some other newer, better cheap piece of crap that they need to pay for. But the voice the announcer uses (is it the same announcer in each commercial) is so hypnotic and he sounds so sure of the amazingness of the product, I find myself wanting the Perfect Pull-up gadget. And I hate pull-ups.

The Portabook was impressive. A cheap, plastic thingie to prop up your laptop. I don't quite know how I've managed to use a laptop all these years without one. I also like the sound amplifier thing and I really respect the fact that the commercial blatantly recognizes that one of the ideal uses for the amplifier is to listen in on private conversations going on across the room.

But my personal favorite so far has been the snuggie. (www.getsnuggie.com) It's a fleece blanket with arms. Ideal for lying on the couch watching t.v. 'cause your arm can be under the blanket, but your hand still free to use the remote! Or you can wear it like a backwards bathrobe or take it to outdoor sporting events. (Ok, so it wouldn't really cover your backside then and the people all look like some weird kind of suburban monk, but their front sides and arms must be warm.) I think I need one. And if I call right now, I'll also get the amazing mini book light. Plus, a second snuggie and book light for free. I definitely need one. It would keep me so warm as I flip between SoapNet, Style, and WE.

Friday, November 28, 2008

Black Friday indeed

Crazed shoppers at a Wal-Mart on Long Island trampled a worker to death as he tried to stop the unruly crowd from entering in a mob. Good lord. What the hell is the matter with people? Apparently a pregnant woman also got knocked to the floor. (Though there are conflicting reports, I believe the accurate report is that she is fine and still pregnant.) And when emergency responders tried to help the dying man, they were also pushed and shoved by the jackasses who cared more about saving a few dollars on a dvd player than the lives of their fellow humans.

Black Friday has never been more aptly named. And it needs to stop. Today should be the last day after Thanksgiving ever of ridiculous sales and early morning openings and lines of rabid crowds competing to get one of the 20 Wiis inside. I always thought it was an ugly display that brought out the worst of people's stinginess and greed, but this is so beyond that, there are no words. It's despicable, barbaric, heinous, atrocious, and cruel.

When the shopping on Black Friday stops being about spreading holiday cheer and buying nice gifts for people but instead becomes a mob scene, it's time to rethink Black Friday. How about stores go back to opening at their regular times, offering sales that will go on all weekend? People can show up at the store when they want, no one has to wait in lines, and maybe no one will wind up dead.

Tuesday, November 25, 2008

Poor Thanksgiving

Thanksgiving really gets the shaft. Tonight, the local news is airing a Christmas-tree lighting. Snowflake labels and snowmen are on everything. Technically, that's not Christmas-related, but everyone knows the natural objects associated with Thanksgiving are leaves and pumpkins. The pumpkin spice lattes are off the board in early November to make room for the ginger and eggnog lattes. (Side note: Starbuck's new gingersnap latte is NOT the same as the old gingerbread latte. And it is definitely not as good.) Those lattes are served in the Christmas red cups.

It's not fair. Thanksgiving rocks. It is easily my favorite holiday. It's got fall, football, pumpkin pie, and that greatest of all foods, dressing. More than that, I love what it stands for. Maybe it's a bit idealized to think of newcomers to this continent and native Americans dining together in thanks of their mutual survival, but it sure makes for a nice story. It's a holiday that fully includes all Americans, regardless of religion, ethnicity, or anything else that can be used as a divider. It's all about unity and giving thanks.

But every year the stores and the news and the t.v. shows rush right past turkey day and go straight for the bigger pay day of Christmas. I refuse to play along. I will not break out any Christmas decorations before this coming weekend. I will not do any Christmas shopping, either. I stick to the pumpkin spice lattes. (Ok, I cracked and have had one or two ginger lattes, but I felt guilty.) I will not bake any Christmas foods or listen to any Christmas music.

This is Thanksgiving season and I intend to honor it. At least until all the left-overs are gone.

Excellent news!

From the Miami Herald today:

A Miami-Dade circuit judge Tuesday declared Florida's 30-year-old ban on gay adoption unconstitutional, allowing a North Miami man to adopt two foster kids he has raised since 2004.

Here is the full story. My favorite quote is:

The attorney general's office had argued that gay men and lesbians are disproportionately more likely to suffer from mental illness or a substance abuse problem than straight people, rendering them less fit to parent -- especially children in foster care who already are under tremendous stress.

Well, that's just offensive. I know they don't have any credible medical research to back that up. Even if they do have some highly suspect research on their side, I know the majority of credible research refutes this claim. And even if it were true, it is not a justification for an all-out ban on gay adoptions. I would assume that the Florida Department of Children & Families already has a screening program in place to weed out potential foster and adoptive parents who have mental health issues.

The two young boys in this case, ages 4 and 8, have lived with Frank Gill and his partner for almost four years. Now I'm no math expert, but seems like that means the younger one doesn't know any other parents. According to the judge, it's uncontroverted that these two boys are thriving. What possible motivation could DCF have for wanting to remove these boys from a loving home in which they are thriving? What trauma would it do to the little one to take him away from the only home he's ever known? And what trauma would it do to the older boy, who sadly probably does remember something of his earlier life? How would that boy ever feel secure again if we take him away from the safe, loving home we put him in? It would just be cruel. Bravo to the judge for reaching the right decision. I do think it is not just the morally correct decision, but the legally correct decision. I don't think the state can even pass the rational basis test for this ban. There is no rational reason for the state to have a blanket prohibition against gays and lesbians adopting. Not liking "the gay lifestyle" (what the heck is "the gay lifestyle" anyway? Is there a "straight lifestyle?") is not a reason for denying all gays and lesbians in the state the chance to adopt.

This is only a district court ruling, so there will be appeals. Here's hoping this will be the case that will get up to the Florida Supreme Court so they can finally get rid of this terrible ban that certainly is not in the best interests of Florida children.

Things 13 year-olds should DEFINITELY be arrested for

Farting. Yep. A 13 year-old junior high student should absolutely be placed under arrest for passing gas and generally disrupting his classroom through non-violent means.

Here is the story of this kid who was charged with disruption of school function. This is what happens when we as a matter of course have "school resources officers" otherwise known as cops whose beats are public schools. We're reaching a point of turning any and every conflict or behavioral problem over to the cops. Here I wrote about a mentally ill client of mine who was referred to the cops by the very psychiatric ward who had taken responsibility for getting him through his violent, schizophrenic episode.

Calling the cops in a situation like this should be an absolute last resort. A child disrupting a classroom should be dealt with through discipline or be made to see a counselor or both. Parents should be called and made to be more involved in addressing the child's behavior. If parents can't or won't get involved, then maybe protective services should get involved. But arresting the kid and charging him with a crime just shouldn't factor into the equation. Not for behavior that didn't hurt anyone, didn't even threaten to hurt anyone. But because cops are always there at school nowadays, it's just become too easy to involve the school resource officer. Just let the cop deal with it.

Disciplining kids is hard work. Maintaining your cool as a kid does everything he can to push your buttons takes a lot of srength. But if you're a parent or a teacher or a school administrator, that's just part of your job. Part of running a school is teaching children acceptable behavior, respect for others (which would include not farting), and disciplining them when they mess up. Yes, public schools are underfunded and undestaffed and don't have time to deal with one or two trouble students. But tough. My office is underfunded and understaffed and we don't have time to deal with trouble clients, but I'd still get into ethical trouble if I just chose not to deal with one of my clients or decided not to pursue one of my cases. I just have to figure out how to make it all work. We aren't doing our kids any favors by telling them they're criminals for behaving like immature 13 year-old boys.

Monday, November 24, 2008

In which I temporarily turn in my Public Defender Badge to become a Crime Fighter

Yesterday afternoon, I was in my bathroom attending to my very-clogged bathtub. (Not relevant to the current post, but I did get the tub unclogged. Thoroughly unclogged. Made for a delightful shower this morning.) But I digress. I live on an alley with a detached garage. The window in the bathroom looks out on the garage and, because of the placement of windows, from that window, I can look out through the garage and to the alley beyond.

While I was futzing with my tub, I heard a car idling in the alley, right by my driveway. Why, I don't know, but I got curious so I looked out. I saw a man, unashamedly and in broad daylight, stealing my firewood! Back in June, a very large tree fell down on my driveway. In a stroke of good luck for me, it landed on a power line, so the power company came right out and hired tree-cutters to deal with it. They came out around midnight and had it all handled by 2 a.m. The nice tree-cutter folks cut the large tree up into logs just the right size for using in my patio fire bowl. We've used a couple of the logs, but it's a pretty big pile. Which this loser was methodically transferring from my property into his pick-up.

I ran through my house and out the back door. I'd like to tell you I had a really classic opening line that would make Dirty Harry proud, but the question that came automatically out of my mouth was, "What the fuck are you doing?" The guy just seemed surprised to receive any opposition to his thievery. He apologized, said he didn't know it belonged to anyone (how do you not realize that the stuff on someone else's property probably belongs to that someone else?), and said in his defense that he walks down that alley all the time and that wood's been there for over a year. Maybe I was just ticked, but I don't think his apology was very sincere. I think he felt pretty entitled to take that wood and was just more surprised to have been yelled at than truly sorry for anything.

I had some serious adrenaline going at this point. I was stopping a thief! I was confronting an interloper and defending my land! I'm pretty sure my nostril was flaring. There was probably a vein pulsing somewhere on my face. In what I can only hope was a stern, don't-mess-with-me-and-my-stuff tone, I informed him that it was most definitely my wood, that it had most definitely not been there for over a year, and that I most definitely intended to use MY wood at whatever leisurely pace I damn well chose.

Then, in my favorite part of the exchange, he asked, as if he was really wondering, "Do you want me to put it back?" Really? What part of my angry, curse-filled tirade made you think there was even a possibility that I would let you keep any of your ill-gotten gain? Because I'm gonna want to work on tightening up my tirades so that the next would-be thief who receives one doesn't get the impression that there is any room for negotiation.

He put it all back as I watched. As soon as he drove away, I started moving the pile to a spot between my house and garage, so it won't tempt any more cold slackers who want to warm themselves as cheaply as possible. I should have made him move the whole pile for me.

Ok, I know it's only firewood that cost me nothing. But it's the principle of the thing. This jerk trespassed on my land. Until just yesterday, I never really thought of myself as owning land. I bought a house, sure, but it didn't really hit me that I really am a land-owner, too. And I didn't tell this guy he could step one foot onto my land. He trespassed on my land with the express purpose of taking my stuff. What nerve. My car was right there, so he should have realized someone was probably home. How hard would it have been to knock on the door and ask the home-owner if s/he wanted him to haul that wood away? Not very. But he didn't want to ask for permission. He just saw something he wanted and decided to take it.

Until I made him stop. 'Cause, you know, I'm a badass crime fighter.

Sunday, November 23, 2008

What is she trying to tell us?

I admit, I don't always know what my dog wants. In this picture, she seems quite intent on telling us something, but I'm not sure what.
Any ideas?

Friday, November 21, 2008

Well, this changes things.

The prosecutor in St. John's, Arizona has filed a motion to dismiss one of the murder charges against that 8 year-old boy. Interesting. Specifically, the boy will no longer be charged with murder in the death of his father (assuming the motion is granted, as they almost always are). Very interesting.

What does this mean? This suggests the state has radically rethought its theory of the homicides. But they're not just saying they have no confidence in the confession. Were that the case, they would dismiss both charges. I don't want to speculate too much, but I've got all sorts of ideas running around in my head right now. (Do they think roommate killed dad and then kid shot roommate?)

What I do know is we are getting a good lesson in why we all should not rush to judgment within hours of an investigation beginning. Whatever happened here surely traumatized this boy. If it turns out that the truth is something other than what those police officers decided early on, how much extra trauma has this poor child been put through? It seems like the authorities in Arizona just recklessly rushed ahead to the accusation stage without thought to the consequences. Police officers led this 8 year-old to confess to shooting two men, one of whom was his father. Police charged him with double murder and talked all tough about how this kid should be charged as an adult for committing premeditated, intentional murder. It's bad enough to do that kind of stuff to an adult who turns out to be innocent. But if you publicly accuse a child of double murder (including the murder of his parent), you better be damn sure that you're right. If you're not sure, maybe you ought to shut the hell up and do some more investigating.

I'm cursed

First, it was the computer with its blue screen of death. Ok, but that situation was resolved without costing me anything.

Then, I got a flat tire this week. It was not a fixable situation, so it required purchase of a new tire (well, 2, because I'm programmed to buy them in pairs). The tire situation also led to the discovery that my front brakes needed to be entirely replaced. Ok, that wound up not costing as much as I might have feared. It was only two tires and the front brakes.

Now, my bathtub is clogged. Completely. Totally. Drano did absolutely nothing for it. Damn my gorgeous, flowing locks! I'm guessing getting a plumber to come look at my pipes on a Saturday will not be cheap.

This hasn't been my best two weeks. What do you suppose will go wrong next?

More money for beer (or wine)!

I just filled my gas tank for under $20. Completely filled. In fact, I was so low on gas, I was a tad worried about making it to the gas station. And still, I stayed under $20. I've never been so happy after a gas station visit.

Thursday, November 20, 2008

Real conversation that occurred in my county treasurer's office last week*:

Treasurer's Office Flunky #1: Hey, wouldn't it be fun if we could find a way to freak out like 2,000 homeowners all at the same time?

Treasurer's Office Flunky #2: Dude, that would be awesome! How about if we send them all tax bills that they don't really owe?

TOF #1: Excellent! And we'll say the payment is due Dec. 20th! That'll totally mess with their heads!

(Apparently, TOFs #1 and #2 were named Bill and Ted in a previous incarnation.)

As one of those homeowners, let me say, TOF #1 and TOF #2, you failed! I was not fooled. I did not freak out. I did not hyperventilate upon seeing a bill for $2,000. I did not picture being foreclosed out of my home and being sent to prison for tax evasion. I did not envision months of tear-inducing phone calls to your office, my mortgage company, and lawyers trying to correct the mistake.

Ok, at least I didn't have any of those reactions for long as the lovely local newspaper had an article about the erroneous tax bills, that were sent to 2,000 homeowners, on its website within about 20 minutes of my receipt of the tax bill. Those 2,000 homeowners, myself included, all have mortgages with the same bank and, like most homeowners, have their taxes paid automatically as a function of their mortgages.

So, ha, TOFs #1 and #2, I knew I didn't owe you any money! I knew you shouldn't have sent me a bill! And I'm not going to spend one more minute stewing about it. The article said I could just ignore the big, mean, nasty bill so that's what I'm going to do.

Well, maybe I'll just make one phone call to my mortgage company next week, just to be on the safe side.

*I have no actual proof that this conversation occurred, but I can't think of any other good reason for the country treasurer's office mistakenly sending out tax bills to 2,000 homeowners whose tax bills are supposed to be paid by their mortgage company.

Wednesday, November 19, 2008

What's the matter with Arizona?

So in the early part of Tuesday, the prosecutors who have charged the 8 year-old boy with murder released only 12 minutes of video of the young boy's police interrogation, none of which contained the alleged confession. But later in the day, the remainder of the video was released. By the prosecutor's office. And why? Because it's a matter of public record, according to Apache County Attorney Christopher Candelaria, so they were OBLIGATED to release it.

What? No, let me amend that. WTF??? The alleged videotaped confession of an 8 year-old charged with murder in an on-going investigation is a matter of public record? What have we been doing all these years messing with motions for discovery? We didn't need to mess with reciprocal discovery rules. We just needed to be filing open records requests! How could none of us have known that? Did the entire criminal defense bar miss the day in law school when they explained this public records stuff?

Oddly, Mr. Candelaria didn't elaborate on what he meant by his claim that evidence in an ongoing murder case involving a juvenile defendant was a matter of public record. Probably because it isn't. Obviously, it isn't. Will someone in Arizona please, PLEASE, report this to the disciplinary administrator so an investigation can be conducted into whether this guy has committed any ethical violations here? Or maybe even broken a law?

And as I was typing this, NBC showed a portion of the tape where the boy said he shot his father. So much for this child's right to be presumed innocent and his right to confidentiality of his juvenile case. I don't know what the people involved in this prosecution are thinking. I guess my earlier expressed hope that reason and order might be restored to this case was not granted.

Tuesday, November 18, 2008

Don't ask, don't tell? How about Don't Care!

Way back in July, I wrote here about what was potentially the opening move in the effort to kill the military's ridiculous "Don't ask, don't tell" policy. Well, today MSNBC reported reported:

ANNAPOLIS, Md. - More than 100 retired generals and admirals called Monday for repeal of the military's "don't ask, don't tell" policy on gays so they can serve openly, according to a statement obtained by The Associated Press. Link

President-Elect Obama has already indicated his support for an end to this policy. Based on the now 15 or so years of Don't ask, don't tell, we now know that nothing terrible will happen if we let gays and lesbians serve openly. And I've said it before, I'll say it again: the military shouldn't get a free pass on discrimination. No other federal employer would be allowed to refuse employment to people based on sexual orientation. It's offensive that the military has been allowed to get away with it as long as they have.

Right now, there are men and women serving in active war zones who can't freely display pictures of their beloveds and who can't talk openly about the true loves they had to leave behind to go serve where their country asked them to. That's shameful and we owe them all our sincerest apologies.

So let's say good-bye to don't ask, don't tell and invoke a new policy: Don't care who you love if you love your country enough to serve.
How does an Arizona television station have a 12-minute segment of the videotaped "interview" with that 8 year-old boy accused of murder? They say they got it from the prosecutor's office. What am I missing? It's allegedly a confession tape, so even if they didn't hand over the segment where the "confession" occurred, I still have a problem with them releasing any part of that interview. And there hasn't even been a preliminary hearing yet, so should the state really be releasing its evidence to the media?

But beyond that, it's a case in which an 8 year-old is charged with murder. Aren't juvenile cases in Arizona confidential? I don't do juvenile cases at all, so I don't really know exactly how that aspect usually works, but releasing video tapes to media outlets seems wrong to me.
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