Monday, February 28, 2011

Supreme Court bizarro world, redux

It takes a lot of mental gymnastics to find that a shooting victim's statement to police identifying his assailant does not implicate the right to confront an accuser, but somehow the US Supreme Court did just that. In a ruling issued today, the Court found by a 6-2 vote that the victim did not make a testimonial statement to police when he told them who shot him. So when the victim died later that night, his statement to police was not inadmissible at trial even though the defendant never had the opportunity to cross-examine the victim. Because when the victim told police who shot him, he wasn't thinking about helping to prosecute the shooter. At least that's what the court insists they believe so they can justify this travesty of a decision.

Today in Michigan v. Bryant, the Court allowed a conviction to stand even though it was based in large part on the un-confronted statement of an unavailable witness, the victim who unfortunately died from his wounds. The decision is truly one of the worst I have ever read. It took me hours to get through it all because I had to take so many breaks to make sure my head didn't explode. (I'm still not sure my head is safe.)

The Court took 32 pages to get to the conclusion that a victim identifying his assailant to police did not implicate the Confrontation Clause. It should have taken them all of about 4 to reach the opposite, correct, conclusion. It should have been an easy case, a slam-dunk. The Sixth Amendment says a defendant has the right to confront his accuser. The victim in this case accused the defendant, but the defendant never got to confront that accuser in court. That really should be the end of the story and the victim's statements should have been excluded at trial.

But, no. The Court insisted that we think about the specific circumstances of how the statement was made. What were the police thinking when they arrived at a gas station to attend to a shooting victim? Was there still an ongoing emergency for the police to address? How serious were the victim's injuries? The court invests pages in creating inventive ways that the victim's statement, "Rick did it," is something other than accusatory and made for some purpose other than to aid in the eventual arrest and prosecution of Rick. No, the victim could have just good-heartedly wanted the threat to others to end. Or for the attacker to be incapacitated. Or rehabilitated. Honest to god, I did not make that up. The Supreme Court of the United States really and truly offered the suggestion that a shooting victim might tell the police who attacked him simply so that the attacker could be rehabilitated.

The Court also wants us to consider whether the emergency situation is ongoing or not, but they decline to answer the question of when an emergency does reach its end. The way the opinion reads, though, it isn't illogical to think an ongoing emergency in this type of situation just might not be resolved until the assailant is in police custody. Because as long as the crazed gunman is on the loose, we're all in danger. So nothing anyone says to police could possibly be intended to aid a prosecution. It's only to help catch the madman! Even if it takes a year to find an assailant, could it be an ongoing emergency that whole time, thus rendering statements made to police during that time outside the scope of the confrontation clause?  I seriously doubt they would take it to that extreme, but they sure didn't cut it off where they should have: where there's no gunman. (They also suggested that the emergency was ongoing because the shooter might not be done with the victim and might show up, guns blazing, even as 5 armed police officers surrounded the victim. Really? Some of my clientele may be dumb, but they're not THAT dumb.)

All of these details are just empty chatter, though. The Court is getting so mired in details that it is missing the glaringly obvious: when a victim accuses a defendant, that defendant ought to have the right to confront his accuser. And it really shouldn't matter whether the conversation with police occurred inside or outside in the rain or over putts on the 13th green or whether the shooting stopped 5 minutes ago or 5 days ago. But the Court has to get lost in all those silly details because that's the only way to let the victim's identification of his shooter come in at trial. Any answer that requires a re-trial and risks the possibility of a dirty shooting bastard getting away with it can't be right, plain text of the Constitution be damned.

The Sixth Amendment guarantees the right to confront an accuser. In this case, the victim's statement that "Rick shot me" was allowed to come in at trial even though the defendant never got to confront that victim. Really, nothing else should matter. The defendant was accused but had no opportunity to confront the accuser. It really should be easy. Boy, did the court blow this one.

I might actually love my bank

When I got home today, I found that letter waiting for me. The letter from my bank, detailing for me how my mortgage payment would change for the next year. One never knows how insurance and property taxes will alter. In the past few years my mortgage payment has crept upwards. I really wasn't looking forward to another year of paying slightly more on my mortgage even though the county doesn't think my home value has appreciated at all.

So imagine my very pleasant surprise when I opened this year's letter to find that my mortgage payment is actually going down this year. By not a small amount. I'm pretty sure my head did the curious-dog-cock-to-the-side thing. I shook my head to make sure all its parts were working correctly and looked again. Turns out my bank is voluntarily lowering my interest rate. Just 'cause they feel like it. Maybe they're doing this across the board to ward off defaults. But I'm not in any danger of defaulting. Which they should have some idea of as they also hold two of my accounts, including my primary checking account. But I'm not complaining. I'm definitely the opposite of complaining.

That whole housing meltdown is finally benefiting me! I've been a little jealous watching friends buying houses in the years after I bought mine. They're all getting big tax credits and I got nothing. So I am finally receiving some economic incentive to keep my house. Yay!

Yoda says there is no try

But with all due respect to the Jedi master, there clearly is such a thing as trying. I'm stuck right now between deciding whether I try too hard or not nearly enough. I can't seem to get just the right amount of try. Sometimes I feel such guilt or self-doubt that I didn't try hard enough, I wind up going completely overboard in the other direction to make up for it.

Maybe if I keep trying, I will eventually hit my stride and find just the right amount of try for each and every situation.

Don't bother trying to understand this post.  I know what I'm talking about, but you don't have to.

Saturday, February 26, 2011

I think my new thing just might be blogging at ridiculous hours of the night. I am pretty sure I can make some astute observations at 2:45 in the morning. I don't have any right now, but I'm sure I will soon.

In lieu of astute observations, let me note a few things for which I am thankful right now.

1) "Sex and the City" reruns on E! from 2 to 3 am

2) the fact that my bed does not smell like wet dog tonight. Last night we got a big snow storm which led to my sweet pup getting quite a shower when she went out for her evening constitutional.

3) my iPad. It's so much more portable than my laptop. Makes web surfing in bed easier.

I would also be quite thankful if I could at least come up with some brilliant insight into my current case in these painful hours when I can't sleep. But, alas...

SATC is ending. (ooh, I can say I'm thankful I've never been dumped on a post-it!) So now it might be time to watch "Persuasion" for the 3rd time this week.

- Posted using BlogPress from my iPad

Location:My new thing

Thursday, February 24, 2011

Sleep and I have never been good friends. Our relationship has been rocky at best since I was 6 years old. But lately, sleep has decided it hates me, that I am its mortal enemy. I do believe it has declared war on me.

It is 1:45 as I am writing this and I am not the least bit sleepy. Tired, yes, but as far from sleep as one can get. I can't remember the last time I fell asleep before 2. And really 3 or even later is more likely.

Fortunately I have not passed my insomnia on to Maddie. That dog is snoring away as I type. I don't like being jealous of a dog.

Thank goodness I am the kind of lawyer who doesn't have to be in court much. I don't know how I would function if I had to report to a courtroom at 8:30 every day.

- Posted using BlogPress from my iPad

Wednesday, February 23, 2011

No abortion left behind

This may be one of the most offensive legislative proposals I have ever read.  I first saw blog posts about it, then a news article.  But I thought those sources must be exaggerating the proposal because no one could ever write legislation so outrageous.  So I found the text of the bill itself.  And boy howdy, they were not exaggerating.

Georgia State Representative Bobby Franklin wants to protect all "prenatal citizens."  He really, really wants to protect them.  So he has written a bill that stops just short of putting god himself on the hot seat.  I'm not sure I would have believed it if I hadn't read the proposal for myself.  Franklin wants to make it clear that no abortions of any kind will be tolerated in his state.  And he's none too happy with those spontaneous abortions, either.  Otherwise known as miscarriages.

So Rep. Franklin's radical anti-abortion bill targets spontaneous abortions.  He wants a cause of death to be determined.  He wants a fetal death certificate.  And if a "cause of death" can't be determined easily, well there will have to be an investigation pursuant to the Georgia Death Investigation Act.

As a side note, the bill also includes lots of language about how the U.S. Supreme Court didn't have jurisdiction to decide Roe v. Wade, the part declaring abortion to be legal was all dicta, the federal government has no authority to tell the state of Georgia how to define its crimes, etc.  And then at the end it declares, "No portion of this Act may be found to be unconstitutional by the federal courts as they lack the subject matter jurisdiction to instruct this state how or whether to prosecute certain crimes."  I could write an entire post about this lawmaker's misunderstanding of basic concepts of law, but I'm resisting.  (A state can't tell federal courts what they can and can't review!)  Ok, I'm mostly resisting.

I'd rather focus on the substance of this proposal.  Because I don't think this man has any idea about miscarriages.  Some of them happen very early in pregnancy, sometimes before the woman even knows she's pregnant.  Women can expel fertilized eggs without having any clue.  Miscarriages can occur at home, at work, or anywhere else a woman happens to be.  They don't always happen in hospitals or doctors' offices.  And it's not like we can expect autopsies to be done.  So how is a doctor supposed to determine a cause of a miscarriage?  And if a doctor can't determine a cause, as they probably won't be able to, does Rep. Franklin really want detectives to open a death investigation?  Does he want police questioning devastated women, trying to suss out whether they did anything to cause their miscarriages?  As if women who've lost pregnancies aren't feeling responsible enough already.

In his zeal to protect "prenatal citizens" and make sure that no one is intentionally "murdering" them, he wants to treat every end of a pregnancy like any other unattended death.  But a fetus isn't like a physical person (especially in the earliest stages of pregnancy when many miscarriages occur) and a spontaneous abortion isn't like other deaths.  Trying to treat miscarriages like a death is misguided at best.  It's insensitive.  At odds with the medical realities of miscarriage. It's downright cruel.  And demonstrating that, to Rep. Franklin at least, "prenatal citizens" matter a whole lot more than actual flesh and blood human beings.  Because he would rather make sure that women aren't faking miscarriages to avoid unwanted pregnancies than treat women who've suffered miscarriages with compassion.  Heaven forbid we should allow them to maintain their privacy.

Something like 1 in 5 pregnancies end in miscarriage.  Most of them, we just can't know why they happened.  So if Rep. Franklin had his way, how many women would be subjected to an investigation just because a lot of pregnancies end naturally without explanation?  My own grandmother had numerous miscarriages.  She had given up trying to have a child when my mother finally showed up.  I would hate to think what it would have done to her to have to discuss each of those personal tragedies with a death investigator.  Women shouldn't be treated like suspects when something as natural and frequent as a spontaneous abortion occurs.

I'm sure this proposal won't be taken seriously by the majority of the Georgia legislature, but the mere fact that a lawmaker thinks this is a viable, even reasonable, proposal can't be ignored.  Rep. Franklin, you should be ashamed of yourself.  And I sincerely hope all of your constituents who have had experience with miscarriages let you hear it.

Saturday, February 19, 2011

Life isn't fair.  How many times have we all said that to someone or heard it said to us?  But I wonder how many of us can really bear to go through life believing it.  Because how many times have we also all taken comfort from the thought that "he'll get what's coming to him" or "what goes around comes around" or "karma's a bitch?"  Deep down, don't we all want to believe, need to believe, that the cosmic scorecard will mostly balance out in the end?

But it doesn't.  Bad things keep happening to good people.  Life doesn't work out for everyone and sometimes the bad guys live pretty happy, tragedy-free lives.  And it isn't much comfort to think that those bad guys were too shallow and selfish to really appreciate their good fortune.  Sometimes innocent guys die in prison from asthma attacks that would have been easily treatable had they been free.  And then some years later, the state might finally admit the terrible mistake of that conviction, as if that can somehow make up for the fact that a man's life was totally wasted.  Sometimes really good people face bad tiding after bad tiding with no respite.  Sometimes the heartbreaker's life goes on merrily while the heartbroken's life falls apart.  Neither good people nor bad people always get what they deserve.

In the lifelong battle that pessimism and optimism have waged for my soul, pessimism has finally, most definitely, gained the upper hand.  I have no more capacity to get through each day by telling myself tomorrow has to be better.  I can no longer look a friend in the eye and assure her it can't get worse.  Because it can.  And there's no reason to believe that cosmic scorecard exists, let alone that it will start evening itself out anytime soon.

Optimism isn't quite ready to throw in the towel just yet, though.  It's just badly beaten and bruised, taking a time-out in the corner.  But it can't go another full round without a little help, Universe.  So you've got one more chance to send something good this way.  But at the rate you're going, it's gonna have to be something big.

Tuesday, February 15, 2011

From the desk of Maddie

The cocker spaniel was robbed at the Westminster Dog Show.  Robbed, I say.  No dog should ever take Best in Show over a cocker spaniel.

We cockers can't ever get any respect.

Of course, I would never be picked Best in Show 'cause I would never let anyone groom me to look like any of those prissy dogs.

Why you should always remember to lock your cellphone keypad

Because you could wind up butt-dialing at a very bad time.  Like this guy did.  He just happened to inadvertently activate his cell phone, calling his wife's cellphone and leaving a voice mail as he killed her.  So the lucky jury got to hear him telling her he would kill her.  Then her screams as he actually did.  I'm sure the jury really enjoyed that particular piece of evidence.

My dad and my friend A butt dial me from time to time.  Happily for me, the only voice mail messages I've received are several minutes of background noise from whatever restaurant they're at.  Probably because they don't go around murdering people.  But if they do have their eye on someone that life would be better without, I would recommend they both make a better habit of locking their keypads.  Or just revert to an old school flip-phone.

Monday, February 7, 2011

A request

Dear Universe,

2010 was a pretty rough year for 3 women near and dear to my heart.  Yes, that count includes myself.  All 3 of us were looking forward to the start of 2011 with optimism, hopeful that with a new year would come good tidings.  Instead, 2011 has now taken a drastic turn for the worse for 1 of us.

So now I'm asking you, please, PLEASE, give us a break.  Send something good in the direction of my two lovelies.  They are both so deserving and I truly do not know how much more they can take.  I certainly don't think they should have to find out whether they can.  And if you get to me, too, that's great, but take care of them first.


Sunday, February 6, 2011

I've been in a period of self-discovery for a while now.  Finding new friends, strengthening neglected friendships, trying new things.  I'm working on not saying no to things, especially things that might be out of my previous comfort zone.  I may not yet have figured out what I really want my life to look like, but at least I'm figuring out what people I want to surround myself with on the journey.

This past week has been draining and not in the mold of previous weeks that have been so filled with social outings, I barely spent waking time in my house.  Not because of anything that happened to me, but because of the suffering of a friend.  (And Snowmageddon 7, which kept me out of work for 2 days and made getting out of my alley an adventure.)  Watching someone you dearly love go through the worst thing she could possibly deal with is heart-breaking and exhausting and doesn't leave much room for martini night or dinner out.

These above factors combined last night to lead me to the roller derby.  My new friend wanted to go for her birthday party and I was looking for a light-hearted night out.  So I went to the roller derby.  And I think I've found my new calling.  Because I love roller skating.  Always have.  When I was a kid, I wore my Smurfette roller skates around the house all the time.  My best friend and I practiced our routines on my neighbors' perfect, flat driveway.  And I was fast.  I'm a pokey runner, but on skates, no one could keep up with me.  I took right back to roller skates when I was 19 and a camp counselor taking my kids to a skating rink.  Watching women skate around that track super fast reminded me of how much I loved it.  But they don't just skate, they knock each other down.  And I love the idea of knocking people down!  I may be small, but I'm feisty and uber-competitive.  I think I may just have exactly what it takes to rock at roller derby.

I'd better go buy myself a pair of skates (with or without Smurfette on them) so I can start working out before next season's try-outs.
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