Thursday, November 21, 2013

The neverending trial story

James Holmes, the man accused of perpetrating the Aurora, CO theater massacre, is now without a trial date. His case is indefinitely postponed while the attorneys wrangle over mental health examinations. The state got one performed and now wants some kind of clarification or re-exam. (Which, btw, suggests that, duh, the guy is insane, just as the defense has always maintained.)

So now there will be more psychological evaluations, more motions hearings, more everything but resolution of the case. And, sure enough, the comments online are expressing deep consternation about the fact that the alleged shooter isn't already a pile of bones. (Yep, actual comment. Not making that up. That's a fairly tame one, frankly.) How shameful it is that someone didn't just take him out back and put a bullet in his forehead. How unfair it is to the survivors and families that this will drag on longer and longer. How awful those blood-sucking leeches of bleeding-heart liberal defense attorneys are who defend this guy, gumming up the works so justice can be delayed forever. (Do we suck blood because we have to continually replenish the supply our bleeding hearts spill everywhere? Probably.)

I just want to point something out, though. That this case isn't resolved yet isn't on the defense. This one is squarely on the state. However long this case drags out, whatever twists it takes, remember one thing: the accused offered to plead out long, long ago. This case would be reduced to nothing but files stashed away in a storage room somewhere by now if the prosecutors weren't so dead-set on killing an insane man.

So if you want to be mad that someone is delaying justice, be sure you're focusing your anger where it belongs.

Tuesday, November 19, 2013

Hey Liz Cheney

This is what it looks like when you put your family member ahead of some group you want to be a part of.

Of course, I don't know what any of these familial relationships look like in real life, behind closed twitter accounts. But if I had to pick a new family for myself, I'd sure pick the dad who would risk his livelihood to stand by me rather than a sister who would disapprove of my family to score political points in a race she has no chance of winning anyway.

Thursday, November 14, 2013

In which I throw my red wine glass at my favorite Thursday tv show

Oy, it's bad enough when shows and movies about the law absolutely butcher trial procedures. Arrested today, tried tomorrow! Attorneys presenting testimony and evidence instead of asking questions of witnesses! Attorneys dramatically ending their cross-examination of a witness by declaring they're calling a new witness! Yeah, none of those things happen in real life.

But tonight, Grey's Anatomy (which I'd always thought got the medicine part more or less right) is tackling medical malpractice. And it's ruining my Thursday night escapism because it's laughably inaccurate. Being me, I can't let this stuff go. Not from a show that's so far out of its regular field.

The surgery in question happened 4 months ago. As in earlier in 2013. And yet we're supposed to believe it's already reached trial. That would never, never, ever in a billion years happen. Few types of cases take longer to get to trial than medical malpractice cases. Why the hurdle for getting a law suit started on a medical malpractice claim is such that no law suit would ever even be filed only four months after a surgery. Try a year and a half.

And then it would be years more before the case saw the inside of a courtroom. Years of discovery and interrogatories and depositions and motions and expert consultations and etc., etc.

Ok, so it's ludicrous beyond belief that the case is already being tried 4 months after the surgery. Then we had a doctor on the stand trying to answer questions by the plaintiff's lawyer. She was clearly trying to explain why the defendant doctor did what she did and how it wasn't malpractice, but the plaintiff's lawyer cut her off, saying it was a yes/no question. The witness left in despair, being made to feel she hadn't been allowed to explain. Of course, in an actual trial, the defendant's lawyer also gets to question witnesses. Any decent trial lawyer would immediately start the examination of this witness by asking her to say what she'd wanted to say to the other lawyer. Crisis averted, problem solved.

Honestly, it's like they're not even trying. I hope Scandal doesn't try to get too far into any trial stuff. Girlfriend needs her harmless escapism free of really bad law stuff.

Tuesday, November 12, 2013

One wrongful conviction saga comes to a deligtfully abrupt end

Every once in a while, it happens. Every once in a while, a prosecutor pleasantly surprises me. Today is one of those days. Living so near to Missouri, I have been aware of the Ryan Ferguson case for years. He was still just a teenager when he was accused of a murder in Columbia, MO. He has steadfastly maintained his innocence and his father has worked doggedly to keep the case in the news and build a public groundswell of support for Ryan. Over the years, the case against Ryan has fallen apart. The CBS 48 Hours reporter who researched the case for that show has unabashedly proclaimed her belief in his innocence. (Yes, press, it is actually ok to take a position on something once you've done your research and know the facts.)

Finally, last week, an appellate court in Missouri granted Ryan a new trial. Immediately, his dad and lawyer were talking about how quickly he would be released. I'm a cynical pessimist with a background in appellate practice, so I thought that was naive talk because I assumed the state would appeal the ruling to the Missouri Supreme Court. I further assumed that the prosecution would insist on retrying Ryan because that's the usual course of things. Prosecutors don't tend to give up. Often, even when there's a new DNA result that doesn't match the defendant and the theory all along has been that there was a single perpetrator, prosecutors are more willing to amend their theory that there was a second attacker rather than admit the defendant wasn't involved. (This is not always true, of course, but it does happen.)

But today, those prosecutors in the position to make a decision about the Ryan Ferguson case decided to do the right thing and let the case go. Just a few hours ago, Ryan left the Boone County Jail (in a car decked out with his picture, which I'm presuming was part of his father's billboard campaign to free him). These prosecutors recognized that they had no case against Ryan and so decided to acknowledge that truth rather than cling to a discredited theory of guilt. I hope this also means they will reopen the case and work to find the actual killer.

There's another twist to the Ryan Ferguson saga, though. There's still someone in prison for this murder, a person whose conviction is based on the same theory of guilt as Ryan's was. In fact, the other individual, Charles Erickson, was one of the two witnesses who truly implicated Ryan at trial. But Erickson's testimony was always problematic and he has long since recanted. (Hint: when a defendant talks about his memories of the crime in terms of a "dream," that's a sign of a possible false confession.) Erickson is not currently in any position to have his conviction overturned as he entered a plea. He's sort of the forgotten man in this saga, probably earning less sympathy from most people for having brought this on himself by claiming he and Ryan were the culprits. (I'm not sure how it came about that he gave the statement and testimony he did.)

So while it's fabulous to see Ryan Ferguson going home tonight, the work of the prosecutors dealing with this murder case isn't done. If Ryan Ferguson wasn't involved, then the guy he was with that night without whose false claims you wouldn't have convicted Ryan wasn't involved, either. So you still have one wrongly convicted guy behind bars and you still have a wrongly-free murderer on the loose. One error corrected, two to go.

You didn't think I would really be satisfied by a prosecutor's actions, did you?

Monday, October 28, 2013

And pregnant women across the land rejoiced

You know how random strangers tend to act like pregnant women belong to them? Everyone thinks they get to ask questions, offer advice, make overly personal comments, touch bellies. (I'm trying really hard to keep our contraception/abortion battles out of it, but it sorta seems natural that since we let random strangers have so much say in those things, it's no surprise that the busy-body-ness continues with the pregnancy. State legislators, lobbyists, church groups, and others feel they have the right to control some decisions regarding conception and pregnancy, so why shouldn't they think they get to control the whole dang 9 months?)

One of the frustrations so many of my friends have expressed is this thing they have experienced with people they barely know: the idea that said people are welcome, entitled even, to touch the pregnant woman. Never mind that touching women without their consent is technically a crime. In my state, it's misdemeanor battery to touch someone without her (or his, but we're talking about pregnant people here, so her) consent if that touching is done in a rude manner. I argue it is inherently rude to presume you're allowed to touch a woman just because she's pregnant. I suspect a lot of pregnant women throughout the country wouldn't mind yelling at those people. And I wouldn't be surprised to learn many of them are secretly cheering at this story.

A man in Pennsylvania was charged with harassment for hugging a pregnant woman and rubbing her stomach. It's not even a misdemeanor. It's like a ticket. Pay a fine and go home. Not some big life-altering event. But maybe this guy, and other intrusive people who see this story, will think twice before touching another pregnant woman without permission.

It's not cute or sweet. Not everyone's pregnancy belongs to the entire world, or even to all the people that particular pregnant woman knows. A woman doesn't lose all right to privacy when she becomes pregnant. She doesn't become just some soulless vessel whose precious cargo can be claimed by the entire human race. Women, even pregnant woman, are autonomous beings who actually do get to decide how they want to interact with others. It may be a small thing, but it's nice to see one prosecutor in Pennsylvania respecting that.

Monday, October 14, 2013

And the Nuttiest Member of Congress is:

In the past few days, Louie Gohmert has gone out of his way to prove something. In these days of record low approval ratings for Congress and general disdain and contempt being heaped on pretty much the whole lot, he wants everyone to know beyond a doubt that there is no contest for the title of Nuttiest Member of Congress. No matter what any of the rest of them do, he wins it. Hands down.

He's always stood out with the racist, zenophobic, stupid, horrible things he says. He's not backing down from bringing the stupid when he says now that he's no sure if he'll vote for a bill to avoid default, but he is sure it will be an impeachable offense by the president if default happens. (Wouldn't that be sort of like my employer being unsure whether it would issue my next paycheck, but declaring it will sue me if I don't get a paycheck?)

But maybe he's just so blinded by Obama Delusion Syndrome, that makes sense to him. Lots of people in Congress are irrationally desperate to impeach Obama for something, anything. So he decided he had to go one further to really set himself apart.

So he declared that a certain senator from Arizona (you know, John McCain, decorated Naval officer, former presidential candidate, six year prisoner of war) supported al qaeda (you know, the sworn enemy of the United States).

Now, I'm no huge fan of John McCain. I disagree with him on a lot of policies (though I also agree with him on things). I think his temperament would have been disastrous in the White House, so I'm thankful he wasn't elected. But I have never once doubted that our disagreements are between two people who both love our country and want what's best for it, but sometimes have different ideas of what's best or how to achieve it. Unlike Gohmert, most of us are capable of understanding that having different takes on foreign policy isn't equivalent to supporting terrorists.

I really want Texans to shut this guy up already. (By which I mean vote him out, of course.)
I know, I know. You're all wondering. Where the heck have I been?

Well, real life has been a bit rough of late. Things have changed, probably irrevocably, and that's hard to take. We may know as we age that these things have to happen eventually, but we're still never quite ready for them when they do come. Some moments have been encouraging; some days have been incredibly discouraging.

Through it all, I just haven't had much time or emotional energy for anything else. My presence at the office has been spotty at best. My house has turned into more of a dumping grounds than a place a person actually lives.

There's not much I can do about it, though. So I really need to take steps to make myself do daily things, like dishes and laundry and ranting about things. This is a start.  I'll call this good for a while and go back now to sitting on the couch, glumly stewing over things I can't fix. That seems like a productive use of my time, don't you think?

Saturday, September 28, 2013

If Congress can't get its act together by Monday evening, lots of government workers will stop getting paid. I don't know about you, but if I didn't get my next paycheck, it wouldn't be pretty. I mean, ultimately, it'd be ok because my parents would cover me. (We've already discussed this when there were rumblings of my state not making payroll once.) But not everyone has parents who have the means to help out. I also have a retirement account I can take loans against, but again, not everyone has such a resource.

Instead, an awful lot of Americans would be pretty damn screwed if they missed out on even one paycheck. Most notably government workers, who tend to be lower-paid than their private sector counterparts. And most notably of all the lower ranking members of the US military, whose paychecks are among the smallest of federal workers. Of course, those military employees (you know, soldiers) who aren't going to get paid still have to show up to work every day.

It's infuriating that Congress is at this ridiculous point again. Just fund the damn government. And House Republicans, give up already. The Affordable Care Act is the law of the land. You lost the election that would have allowed you to repeal it, so stop trying. Come up with useful reform ideas if you hate it so much. But stop holding our government hostage because you refuse to recognize a law you just don't like. (And, honestly, is it possible at this point you just hate it at this point because you're afraid it might actually work?) Shutting down the government in this petulant manner will ultimately cost taxpayers so very much more than funding the law will.

The most disgusting thing I have read about all of this (today, at least) is that Ted Cruz, he of the not-quite-filibuster, has "no intention" of giving up his own paycheck if the government shuts down. Never mind that he can probably absorb the loss of one or two paychecks far better than the vast majority of federal employees who have no say in the matter.

Good to know who the Ted Cruzes of the world are looking out for.

Saturday, September 7, 2013

Focus? Who needs focus?

The problem with having an article due while having 4 books burning a hole on my coffee table while actively trying to follow 5 sporting events while needing to sort laundry, cook dinner, and wash dishes? You wind up with a crappy article, having to re-read entire pages of books, missing all the good plays, going hungry, and with badly-folded laundry.

I don't multi-task nearly as well as I want to believe I do.

Good thing I don't have to do any public defending work this weekend.

Tuesday, September 3, 2013

On second thought

It's been all over the news the past week or two that a judge in Montana sentenced a 53 year-old man to 30 days in jail. The crime? Having sex with a 14 year-old girl. A girl who had killed herself at some point between the initiation of charges and their resolution. The judge (an old white guy) made some comments about how the girl was older than her chronological age and was "as much in control of the situation" as the man old enough to be her grandfather without anyone being born too hideously young.

Wait, did I mention that the creepy old man was a teacher? Yep. A high school teacher at the very school the girl attended.

So the sex this creepy old man had with this 14 year-old girl was illegal on two counts. 1) She was too young to consent as a matter of law. 2) She was a student at his school. It is illegal for teachers to have sexual relationships with students because of the power dynamic.

Yet the girl ends up dead and the creepy old man ends up serving 30 days in jail. Cue justified outrage.

This judge was all kinds of wrong, and in such a way that he demonstrated he utterly fails to understand why certain types of sexual activity is categorically banned. Prison guards can't have sex with inmates. Doctors and lawyers can't have sex with active patients/clients. (Ok, that one's not illegal, just a matter for professional ethics boards.) Teachers can't have sex with students. Creepy old men can't have sex with young teenagers. And all for very good reason. Because in any of these scenarios there is an unfair power imbalance, carrying with it the risk that seemingly voluntary sex was actually coerced on levels even the inmate or patient/client or student of young teenager doesn't recognize. The inherent power imbalance between the two people in the above scenarios makes it nearly impossible for "consensual" sex to be truly consensual. All of which seemed to be lost on this judge who saw a 14 year-old student as somehow in control of her relationship with her 53 year-old teacher.

Prosecutors had said they would look into appealing.

Now tonight comes word that the judge himself has "backed down" (as nbcnews put it) and ordered a new sentencing hearing. The judge has apparently recognized that his sentence might have been an illegal sentence. Those are the key words, illegal sentence, because if the sentence he issued was within the range allowed by law, it was a discretionary decision that appellate courts shouldn't overturn. It appears that the judge's action isn't a direct response to anything filed by the state, but is just an order issued sua sponte (on the court's own initiative).

And now the defender in me is perking up. To this point, I've been in the "this judge is a jerk" camp because his lack of understanding of how these power-dynamic sex crimes work and his lack of sensitivity in comments about a girl who was troubled enough to take her own life. But now, I want to express concern about a judge issuing an order that's not even in response to any motion or pleading filed by the parties but is just a reaction to public outcry. That isn't ok. Judicial decisions, like sentencing, aren't supposed to be subject to public polling. Judges aren't supposed to alter their decisions because the public really, really didn't like what those judges did.

It's a very fine line between the public standing up to a corrupt or incompetent judge who doesn't follow the law and the public browbeating a judge who made a legally allowable but unpopular decision. I don't know enough about Montana sentencing law (and am not in the mood to research it) to know whether the judge's new order is correct, that the 30 day jail term is considerably less than the mandatory minimum. If that's true, then maybe the State would have grounds to file a motion to correct illegal sentence or to file an appeal. I'd be ok with that. But somehow, this doesn't sit right, a judge on his own declaring there will be a new sentencing hearing after he's been hounded by national press for days about his original sentencing decision.

In the end, perhaps this particular man will get a more appropriate sentence, but I won't feel particularly good about how he got it.


The latest word here is that the prosecutors, who clearly did not like the 30 day sentence, are absolutely opposed to this judge's declaration that he's going to re-do the sentence. Because, you know, a judge can't just do that.

This confirms that the prosecution hadn't filed a motion to correct illegal sentence, but that the judge acted on his own. He really doesn't get to do that. As the prosecutors in this article note, sentencing is final when it's pronounced from the bench. It has to go up the chain from there. Even if it is legally allowable for a district court judge to sua sponte recognize a sentence was illegal and thus needs to be re-done, it would be a very bad idea for this judge to take any further action in this case, given the tremendous outcry about this case. This judge needs to be done with this case.

Thursday, August 29, 2013

The blues are winning tonight

Every once in a while, ultimate truth needs to be spoken.

So right now, I'll say it.

I'm miserable.

Lonely beyond belief.

Constantly feeling sad, worthless, unlovable.

And I'm having a really hard time envisioning being stuck living another 50 years like this.

(My family is all ridiculously-long lived, even with things like MS and congestive heart failure. And I'm the healthiest person my family has ever known. On the upside, maybe that means I'll be the one to die young.)

I just can't take this for much longer. Let alone until I'm 90.

Monday, August 26, 2013

When you sentence someone to life in prison, that means you're stuck taking care of that person for, well, life.

We have a problem in this country. This tough-on-crime, ever-lengthening-prison-sentence-lovin' country of ours. The problem is that when you turn to longer and longer prison sentences, make parole less and less common, eventually you wind up with a whole lot of prisoners who are just too dang old to be in prison.

The octogenarian set isn't well-suited to prison life. Elderly men have a hard time getting up from a lazy boy. Imagine watching them try to get up from a metal slab with only a thin mattress for cushion. Prison is all hard edges and harsh atmospheres. Regular prison units just aren't set up for 90 year-olds.

And then there are the health issues. Failing organs, cancers, incontinence. The basic indignities of getting old. Don't forget the big one: dementia. Prison guards with their small salaries and lack of medical training just aren't equipped to take care of incontinent Alzheimer patients in their 80s.

It's a rather untenable situation, as pointed out by Jamie Fellner in this NYTimes op-ed.

I don't want to offer solutions to where we house these elderly inmates. I don't want to encourage compassionate release for those near the end of long lives. (That wouldn't exactly be a money saver for the taxpayers, anyway, as inmates who have been incarcerated for 50 years and are now 80 or older probably don't have any resources or much family to fall back on. We're most likely stuck footing the bill for them either way.)

Instead, I want us to take a good, hard look at why we're so dead-set on long, long prison sentences for everyone. We're costing ourselves so much money. On the housing costs for perfectly young, able-bodied, health inmates to begin with. Then the costs of the elderly inmates they turn into. Or if they do get released someday, we're still stuck paying for them because they have no way to support themselves. We're creating this class of people who will never again be able to contribute to society. So we wind up having to pay for everything, forcing them to live as outcast financial drains. This is why life sentences for everyone is a very short-sighted policy.

We just incarcerate too many people for way too long. This aging prison population problem is just one way in which we are going to pay for our addiction to life sentences.

Wednesday, August 21, 2013

Here's to you, Lawrence Fucking Kansas

Today is kind of a big day in our town's history. On this day in 1863, men from Missouri under the leadership of William Quantrill rode into Lawrence, Kansas before dawn. By the time they left hours later, most of the town was on fire, each building torched to drive out any men hiding inside. Approximately 180 men and boys had been murdered, many in front of their wives, mothers, and children. The town had been looted for supplies. Who knows how many women were sexually assaulted.

The number of dead was a large percentage of the town's population. That percentage translated to today's population would be around 8,000 people. There in the morning and dead by noon.

Not all of the men and boys in town died, of course. The main target of the massacre, Jim Lane, eluded the Border Ruffians by hiding in a cornfield. Another man hid in his well, knowing he was a sitting duck if the raiders thought to look there. According to legend, young men were hastily shaved and dressed in their mothers' or sisters' clothes. Women threw themselves in front of their beloved husbands to shield them from the raiders' weapons. But they were easily tossed aside and made to watch as their husbands were summarily executed. In an infuriating post-raid comment, Quantrill described the "feistiness" of Lawrence women. As if he expected our women to just stand idly by and do nothing as their town was destroyed and their men slaughtered?

By noon, Lawrencians had begun the process of rebuilding, with the first task being to identify and bury the dead. Witnesses describe digging through piles of rubble to find nails so coffins could be hastily built. Under the hot August sun, the stench of death and fire was unlike anything even seasoned farmers could have imagined.

So why did all of this happen? Ask a Kansan (like this one) and you'll hear a heroic tale of unarmed, peace-loving people who simply wanted to live free in a free state. Ask a Missourian and you'll hear some tripe about retaliation for an earlier raid conducted by Jim Lane's red-legs, aka Jayhawkers. The real history goes back to the formation of Kansas as a state, when the people living here wanted to join the union as a free state while people living just across the border in southern Missouri relied too much on slavery for their economy and were not thrilled about having yet another free state neighbor. In the years while Kansans were trying to pass a Constitution that would earn the state entry into the union, Missourian Bushwhackers (or Border Ruffians) came into the territory and tried to make sure our elections went the way they wanted. (They succeeded on the first Kansas Constitution, which meant the true Kansans just had to vote again.) Eventually, the people in Kansas started returning the favor with incursions into Missouri that weren't so nice. This included one raid on Osceola, Missouri in 1861 that left 8 people dead. (The raid for which Missourians now try to claim the Lawrence massacre was retaliation for. 2 years later. Uh-huh.)

Missourians have to ignore all the greater history and cling to that silly retaliation (not revenge!) claim because deep down in places they don't talk about at their Missouri parties, they know the ultimate cause they were fighting for was less just than ours. You'll also still hear Missourians challenge that Kansans weren't all that noble because our reasons for opposing slavery weren't totally based on moral disapproval of owning people. To which I have to respond, does it really matter why one opposes slavery?

But I admit that I am biased. While I acknowledge Jim Lane's red legs did bad things, I still maintain in a two-sided guerilla warfare situation, the side working for the abolition of slavery has the eternal moral upper hand. And nothing justified or could justify what was done to the civilian population of Lawrence on that August morning 150 years ago.

Ultimately, what we should focus on, what the take-away should be, is that this catastrophic massacre made this town stronger. It informs our traditions and heritage. To this day, we proudly proclaim our heritage, in the name of one of our high schools (Free State High) and the most beloved local hot spot (Free State Brewing Co, because without beer, things do not seem to go as well), where John Brown ale is a popular offering.

People living in Lawrence today, 150 years later, still feel joined together by the legacy of that day. Maybe it's because there are still buildings downtown that have bullet holes and fire damage. Or because around town, we all know which houses were built after that awful day, when so little of the town remained standing. We pass by the Eldridge Hotel, knowing the story of the small child who was trapped inside and died when that building burned. Our cemeteries are filled with markers of those who died that day. And many of our residents are part of families whose roots in Lawrence predate the massacre, so the tales of that day aren't just part of the local lore, but their specific family history.

So this is why Kansans today still give a little fist pump when we see the scene from "The Outlaw Josey Wales" when the feisty grandmother declares, "We're Jayhawkers and proud of it," as she declines to buy any molasses from Missouri. It's why we still chuckle when Marge points out to Grandpa Simpson that his flag only has 49 stars and he insists, "I'll be deep in the cold, cold ground before I recognize Missourah!" And why before those Missouri chickens turned tail and ran to a different conference, the KU-Mizzou rivalry was bar none the fiercest in sports. Sure, it's all in good fun, but deep down, we Kansans are still well aware that they burned our town down. When Missourians see today as a day to "celebrate" (which they do: see twitter and this bar, celebrating Missouri's "most decisive road victory"), they make it hard for us to fully forgive and forget.

You can't shake a stick in this town without finding some evidence of our unity, our tradition, and our deep pride at living in a town whose people stood for something. Those Missouri ruffians may have won that day, but Lawrence (and abolitionists everywhere) won in the end. The town that rose back up from the ashes of that day is better and stronger than it was before its character was so thoroughly tested. So its very fitting that this week's special brew at Free State is called Phoenix Rising, a "red, fiery-hued lager" named after one mythical bird to celebrate the spirit of another mythical bird.

Jayhawks, wherever you are, remember to raise your glass tonight (preferably a glass filled with Free State beer) and say a toast to the town that could not be stopped on its way to becoming the very best town in the nation. Free State Forever.

Tuesday, August 13, 2013

Stop and frisk is a horrible, evil, ineffective, awful, and blatantly unconstitutional program. It is a stain on New York City. It is despicable that the powers that be came up with it in the first place and continue it to this day. It is outrageous that a federal court judge had to tell New York City that even in that city, the same standard applies to all persons: that a police officer must have reasonable suspicion a person is committing or has committed a crime before that officer can stop that person. And even with that, somehow, NYC cops still aren't exactly being told, "STOP IT!" It's infuriating.

That is all there is to say about that.

Monday, August 12, 2013

Tonight on "I Don't Think You Can Do That, Your Honor"

In an ideal world, all children would be born into happy, uncomplicated, drama-free situations where the parent or parents had no conflict, no financial difficulties, and could focus on providing all the kisses and puppies and educational opportunities any kid could hope for. In this ideal world, it goes without saying that if there are two (or more) parental type units, they would all come to an easy agreement about something as the kid's name. Oh, and unicorns would deliver coffee and candy and mojitos all day long.

But, of course, we don't live in an ideal world. Kids are born to couples who break up and then can't agree on what last name the kids get. So, sadly, there is a body of case law that dictates how judges should make decisions when parents come to court to settle the name issue. As with most issues surrounding children, the prevailing standard seems to be the best interests of the child. There are numerous factors judges should consider in determining what is in the best interest of the child: things like custody, names of siblings, whether the child might be confused about who the parents are, etc. And generally reviewing courts will look to whether the trial judge abused his or her discretion in applying that standard.

Today came headlines of a child support magistrate in Cocke County, Tennessee (not pronounced "cook") who had just such a case come before her. The mother had put her own surname (Martin) on the birth certificate when her now 7-month-old son was born. The father (not married to the mother) wanted it to be his name (McCullough). So what did the magistrate judge do? Out of left field, she renamed the kid entirely! Martin McCullough! (She did keep the middle name the same.)

Why the name change? Because the child's given name is Messiah and that does not sit well with Lu Ann Ballew. "The word Messiah is a title and it's a title that has only been earned by one person and that one person is Jesus Christ," she told a local t.v. station.

I trust that everyone but the trolliest of trolls and Ms. Ballew herself gets what's wrong with this ruling. I would think the establishment of religion violation would be clear enough.  (As in a US court doesn't get to use a religious belief as a basis for a court ruling, which is exactly what this judge did per that quote.) There's also the interference in fundamental rights aspect of a court or other governmental agency not having any say whatsoever over certain aspects of parenting. Like what the parents choose to name the kid. Since here, Mom and Dad agreed to the first name, the judge had no say over that whatsoever.

That's what made this case make news and what all the news reports are focusing on. But I'm so curious about the other part of it, the part where the judge also gave the kid the dad's last name. And none of the news reports are even mentioning that part! I've tried to find a more thorough article that might go into it. Or a written decision from the judge explaining the decision. Based on what she did with the first name, I just have this feeling that the judge doesn't have a better explanation than "kids carry the dad's last name." That would be a definite abuse of discretion. (It would violate the equal protection clause to say that a father has superior naming rights over the mother.) Obviously, the last name thing isn't what makes this case unusual, but this law nerd really wishes she knew more about the rest. (Basic things like what's the custody arrangement? We know the baby has siblings through the mother: are they full siblings who both have dad's name? Or are they half siblings who have mom's name?)

In the end, I'm pretty confident that the entire name decision will be overturned on appeal (yes, Mom is appealing, naturally, and it sounds like the ACLU might get involved). And why am I so confident? Because, Your Honor, you can't actually veto a name the parents agreed on based on your own religious views. Duh.

Monday, July 29, 2013

Defense Exhibit A

Sometimes I assume people think I and my fellow defenders exaggerate the flaws we see in the criminal justice system or overstate how unfathomable and indefensible some prosecutorial decisions are.

For those people, I'd like to offer Aguilar v. Woodford as Defense Exhibit A. I'd really like people (especially the non-criminal lawyers) to read it. It's fact-intensive more than law-heavy, so don't be scared if you're not a lawyer.

For those of you who don't feel like reading it, here's a quick run-down: Victim is shot while driving his car. The passengers in his car are unharmed. Those passengers offer descriptions of the shooter, all of which put the shooter at shorter than Aguilar. Odd as studies show that witnesses tend to overstate the height of the person with the gun, not understate it. But there's another guy (named Osuna), facially similar to Aguilar, who is several inches shorter (you know, closer to the descriptions). And odd little fact: Osuna had a brother who was shot days before this shooting. Suspect in that shooting? Prize to you if you guessed the victim. Remember that the passengers were unharmed, suggesting this wasn't a gang-turf shooting, but a specific targeted shooting.

Then there were rumblings that Osuna was running around the neighborhood admitting he just shot a guy. And Aguilar's girlfriend/baby mama said he ran out of a gathering the day of the shooting when he saw the victim's red car drive by. Naturally, the prosecution didn't put much stock in that. But she did do lots of leg work to track down Osuna and find witnesses who would testify to his incriminating statements.

Certainly seems like there was at least enough reason to at least investigate Osuna, right? Yet for some reason, the prosecutor directed the police not to expend resources on Osuna because it would be a wild goose chase.

Since the case caption includes Aguilar's name, you should already have figured out that Aguilar was convicted of the murder. But with all this Osuna stuff, there's at least reasonable doubt, right? (Oh, silly naive kids who believe that juries actually respect the presumption of innocence and the state's burden of proof beyond a reasonable doubt.) What other evidence was there against Aguilar that led to his conviction?

Dog scent.

Yep, you read that right. A dog and his nose put Aguilar in prison with a life sentence. (I will not name the dog because darn it, it's not the poor pooch's fault that people have misused him in this way.)

Here's what the guy behind the dog scent nonsense does. He "rubs" a pad on the seat of the car known to have been the shooter's get-away car. He "rubs" another pad on the suspect's clothes. Then he has the dog smell the known pad rubbed on the clothes and takes the dog to a line-up of 4 pads, one of which is the pad with the car smell. And using his super keen sense of smell, the smart, smart doggy hit on exactly the pad the handler would have hoped, the one that came from the car. (Small detail: the smell test wasn't done until over a month after the murder, so it's highly questionable the smell would have lasted that long.)

The prosecution relied heavily on the scent "evidence" both with witnesses and in closing argument. And only after it's all over and Mr. Aguilar is sentenced to prison does the defense learn that the prosecution knew all along that this evidence was bunk. Or at least highly, highly questionable. The appellate decision talks about the dog having a high error rate, but I don't think that's fair. It's not the dog who screwed up. The dog probably picked up on cues and did exactly what his person wanted. But this same dog in a previous scent line-up had led to a guy who definitely didn't commit the crime as he was in jail when it happened, for example. Moreover, the DA's office had stipulated to this particular dog's high failure rate in a previous trial. After that previous stipulation, the chief public defender wrote a letter to the DA stating that the failure rate of the dog was exculpatory information that the DA should turn over in any case involving that dog. Apparently the lesson the DA took from that stipulation and subsequent letter from the chief public defender was that the office just shouldn't tell defense attorneys about the problems with that dog's evidence.

It's pretty well-established law that the state must turn over to the defense exculpatory evidence in its possession. It's also pretty well-established that if any one person in the state possesses the exculpatory information, that knowledge is imputed to the specific prosecutors on the specific case. This way, cops can't just squirrel info away in a hidden drawer without ever telling the prosecutor, thus keeping the exculpatory info from the defense. The fact that the dog scent line-up was so flawed and that the prosecution knew this particular dog didn't have a great track record was clearly exculpatory information that should have been disclosed, especially given how heavily the state relied on this evidence at trial.

And this is the kind of case I see way too often. At least as much, if not more, evidence implicating someone else. And yet a dogged determination for some reason I can never fathom to ignore the other suspect and focus solely on this guy. Reliance on junk science (see tonight's earlier post). Refusal to be open with defense counsel about the problems with that "scientific" evidence. Then on top of all that, it wasn't the first court who heard about the dog scent problem who granted Mr. Aguilar relief. It wasn't even the second. It was at best the third court who reviewed this case who finally acknowledged what a deeply-flawed conviction this was. That's how it goes way too often.

Yes, there are a lot of decent prosecutors and sensible courts. There are even defense attorneys who make arguments that should lose. But this stuff happens, too. We really aren't making it all up.

Suggested viewing for anyone interested in learning the truth about forensic sciences

I am just now getting around to watching an episode of Frontline, the PBS documentary, titled "The Real CSI."  The episode originally aired in April 2012 and was recently re-aired. From the link, I believe it is now viewable online, though I can't guarantee how long it will be available if at all to you.

If I had my way, though, this would be required viewing for all prosecutors, defense attorneys, judges, CSI wannabes, and all prospective jurors. So basically all citizens.

Forensic sciences aren't what they're portrayed to be on t.v. They aren't what people on message boards think they are. More importantly, they frankly aren't how they're portrayed in court. Much of what passes for science in courtrooms is junk promoted by people who don't know what they're talking about. But they have degrees and lots of experience and they use big words, so their views are accepted by judges, prosecutors, and juries who don't have the expertise to see through the claims.

Prosecutors always bemoan "The CSI Effect," complaining that they can't get convictions without presenting scientific evidence. I think the real CSI effect, though, is rather the opposite: when the prosecution does put on scientific evidence, be it fingerprints or dog scent line-ups or bite marks or whatever, juries accept it.

On this show, one of the nation's most renowned fingerprint experts blew the reporter's mind by calling the act of declaring a fingerprint match to be a "leap of faith." The very premise of fingerprint analysis is based on an unproven (indeed a false) premise: that all fingerprints are totally unique. Poor Brandon Mayfield, the Portland attorney who was wrongly accused in the Madrid train bombings of 2004, exposed the untruth of that premise. It doesn't appear too many established FBI fingerprint examiners are too interested in figuring out if his case of mistaken fingerprint identity is an anomaly or the tip of the iceberg.

Science is complicated and something most of us don't think about much after we get done with the science requirements for graduating high school. I fear that most of us tend to defer to the "experts" too easily, having forgotten that a key requirement for any consideration of scientific claims is skepticism. Science can be a tremendous tool, when done correctly. But when it's bad... Well, it's like the girl with the curl: when it is good, it is very, very good, but when it is bad, it sends innocent people to death row.

So watch this episode of Frontline or read articles critical of forensic sciences. If you get called for a jury before doing either of those, though, here are some thoughts:

Be wary of experts who base their conclusions on their years of experience, not rigorous application of the scientific method to repeatable testing.

Be wary of experts who claim infallibility or no error rate.

Be wary of DNA analysts who declare 100% matches on partial DNA profiles or fingerprint examiners who declare matches on a small number of print points. Be very wary of the examiners who aren't open to considering the possibility that there are more DNA and fingerprint similarities than we had previously realized.

Microscopic hair analysis is bunk, so for sure be wary of anyone who says otherwise.

I know I've said all this stuff before elsewhere and have begged people to be more critical toward forensic sciences. But it needs to be repeated again and again as long as bad science is clogging our courts and sending people to prison.

Wednesday, July 24, 2013

Amanda Bynes should not be a client

Have you been following the sad, strange saga of Amanda Bynes? No? Wait, do respectable, serious lawyers not read gossip websites? Well, I never claimed to be respectable. So I read them. Daily. As Melanie Griffith said in Working Girl, "You never know where the big ideas will come from." In this case, the story of Amanda Bynes has a little something to say about the criminal justice system.

First, do you all know who Amanda Bynes is? She had a couple of t.v. shows as a teen. She's been in a couple of teen movies, one starring Colin Firth, one taking my favorite Shakespearean comedy (Twelfth Night) into the wacky world of non-coed high school soccer. Her last credit was in 2010.

Over the last year or so, she's been making a lot of headlines. Allegedly throwing a bong out of a NYC apartment window as police were coming in. (I want to say the apartment was around the 20th floor, so if she did throw something out, it was a dangerous act, though apparently the thing landed safely on the roof of another building.) There's a pending DUI charge in LA. Aside from that, though, there have just been stories of odd behavior, twitter meltdowns and head-shavings and blue wigs and apartment evictions.

Throughout all of these reports we also have learned that her parents are frantic. They moved to California to try to keep a closer eye on her as her behavior deteriorated. (She responded by moving to NY.) They have contacted lawyers, perhaps even tried to use the media's coverage of her behavior to help them in their quest to get help for their daughter. We are also now learning that there have been signs of a pretty severe mental illness for a while, reports of her hearing voices and talking to the air.

But at this point, she is a grown adult so her parents can't force her to accept treatment for mental illness and the law requires an awful, awful lot before it will step in.

Finally, last night came the incident that might actually do the trick, though. Using gasoline and who knows what else, Amanda tried to start a fire on some random old lady's driveway. There are some reports that she was laying down, perhaps suggesting an attempt at self-immolation? I certainly hope not. Whatever she was thinking, the thing that seems to have saved the day is that she got gasoline on her dog. Distressed, she rushed the dog to the nearest place (a liquor store) and washed off the dog in the bathroom. (Clearly she wasn't thinking rationally if she was setting a fire with her dog there but didn't want her dog to get hurt.) The police caught up to her and took her in not on criminal charges but on an involuntary psych hold, called a 5150 in California law. (The dog is safe and sound with her parents.)

She will now be held by the state in a mental hospital while an evaluation is conducted. There's a good possibility now that her parents might be granted conservatorship over their daughter, which would allow them to commit her into treatment against her will. It's the same process that seemed to set Britney Spears on the path to recovery from her mental break.

Now the other important detail for my purposes is the responses on these gossip websites, all of which have comment forums. A lot of comments over the past months have expressed sympathy for what appears to be a pretty serious mental health breakdown. A lot of the comments, though, reject that, instead insisting that Amanda is just an asshole, a jerk, a selfish, spoiled brat. She needs to be arrested and put in jail before she hurts someone. There are also the "mental illness is no excuse" comments. Shoot, I've even seen people suggesting she's just copy-catting Britney's antics to garner sympathy or some such nonsense.

All I have been thinking while following this saga is how like some of my clients she is, in terms of behavior, anyway. Behavior spiraling out of control, eventually becoming dangerous and/or illegal. Then there's the similar frustration of not knowing what to do for a person who is acting out in the throes of mental illness but won't voluntarily seek help (the actual Catch-22 that if you're crazy, you don't know you're crazy).

But Amanda has some things going for her that my clients usually don't. First, she's got very dedicated parents who have been desperately trying to get her help and seem committed to continuing. Second, she does have financial resources. It seems these good parents took care to put much of her childhood earnings into trusts, so while she doesn't have ready access to burn through all of her assets, she does have assets that could presumably be used to pay for mental health services. Third, she got lucky with the arresting officers in the driveway fire incident as they saw the incident as a mental health issue. How the initial responding officers react has a lot to say about the initial treatment of the person. Does that person spend the night in jail before an attorney can get the case to a judge and a DA who might (but might not) see the mental health needs? Or does that person go straight to a psych ward for an evaluation? It's really rather amazing how much the police can dictate the path a case will travel. Imagine if the 911 call about Amanda's driveway antics had been answered by a police officer who subscribed to the "mental illness is no excuse" camp.

The sad truth is that for people like Amanda Bynes or so many of my clients, there aren't many great options. Even a young woman with supportive, involved parents and the financial resources to pay for treatment can't be made to get treatment until she gets a court's attention for breaking a few laws. It can't help that we have such a wide-spread cultural resistance to the very idea of mental illness. She's frankly a little lucky if courts and police being presented with her actions are all recognizing it as a mental health situation and not a criminal case. We massively underfund mental health services. Instead, we wait for people suffering from mental illness to commit crimes. And then we warehouse them in prisons and jails because we don't have anywhere else to put them. We have a mental health crisis in this country. We really, really need to do something about that.

I hope Amanda Bynes is able to find treatment that will help her. I hope that she isn't thoughtlessly labeled a "criminal" and I hope she isn't stigmatized as being defective or unfixable or worthless. I also sincerely hope that more people suffering from mental illness are also able to receive successful treatment and support long before they have to become my clients. I am not equipped to help them.

Thursday, July 18, 2013

Die hard fan? Try die never. Sigh.

The movie "Fever Pitch" makes me cry. Every time.

Why? Not because of the love story happy ending crap. My heart is dead to that nonsense.

No, it's because of the damn Red Sox. They finally pulled it off, broke the curse, and won the World Series.

And every time I watch the end of that movie and see the recaps of just how they did it, the stupid little girl Royals fan who remembers 1985, who grew up listening to and/or watching every game possible, who named all her stuffed animals after her favorite players, who still gets giddy every March because this could be the year, well she gets all choked up watching how the Red Sox finally got back to the series. Because watching it, I can't help but think some day that could be the Royals, mounting a monumental comeback and magically erasing all the bitterness of the last 28 years. The mere thought of it makes me cry. Every damn time I watch that movie.

There is something seriously wrong with me.

- Posted using BlogPress from my iPad

Wednesday, July 17, 2013

Dear Zimmerman Jurors: You weren't given the full law. Oops.

Yes, I said I wouldn't write about the George Zimmerman verdict, so you can now call me a big liar or smugly think to yourselves that you knew I couldn't stay away from the big legal topic dominating the news right now. But today it occurred to me that there is a huge part of the self-defense puzzle that has been missing all along. And if it hadn't been missing, based on Juror B37's interview, I believe at least a couple of jurors would have realized they could legally find against Zimmerman. In fact, I think the question they asked was really meant to ask about this missing piece, they just didn't have the legal knowledge of how to ask the question.

And now the legal pundits I'm watching on CNN are missing it, too! (Hey, CNN, over here! Hire me! I would actually know all the relevant law before pontificating! Oh, that's not what you want? Ok, then.)

Here's why I've been puzzled by this case all along, and why so many of my fellow defense attorneys are and were troubled by the verdict, or rather by the idea that Zimmerman isn't legally culpable here. Because in all this talk of self-defense, Stand Your Ground (which wasn't a factor in this case, btw), and whether George Zimmerman sincerely believed his life was in danger (which isn't the test for self-defense, btw), a key piece was missing. It's a piece that I and my defender friends around here just filled in because we know it. That piece is that the initial aggressor can't provoke someone to use force against him and then claim a right to use deadly force in self-defense. This is the horn book criminal law we all learned in law school. It is absolutely the law in Florida. See for yourself here, in Florida Statute 776.041. (That link actually includes all the self-defense statutes, for your edification.)

What I have always thought about George Zimmerman is that he followed Martin and initiated communication with Martin. This is consistent with Rachel Jeantel's testimony. (Sorry, Juror B37, I found her entirely credible and I have a higher opinion of her than I do of you.) I disbelieve Zimmerman's story as to the extent of the pummeling he took from Martin. I have seen what someone looks like in the immediate aftermath of taking the kind of pummeling to the head that Zimmerman describes. Zimmerman's two small lacerations to the back of the head aren't it. Frustratingly, Juror B37 agrees that Zimmerman exaggerated some things. She also stated that Zimmerman confronted Martin, not the other way around.

The problem is that Zimmerman wasn't terribly fit or a skilled fighter. Martin had the advantage of youth and fitness and got the upper hand in the fight. There is evidence that Martin was at one point on top of Zimmerman, but there is also evidence that Zimmerman was at a different point on top. So it was a scuffle that moved and that no one but those two saw the entirety of.

But there is at least evidence to support the idea that Zimmerman began the confrontation. Whether by words or threatening gesture or actual physical contact isn't known. But as long as he provoked a physical response by Martin either by an actual physical act or the threat of the use of force, he doesn't get the benefit of self-defense, at least not to the same degree. (Having been followed by a creepy guy, let me tell you, I found that in and of itself a threat of force.) You don't get to pick a fight, get beaten, and then kill the guy you picked the fight with all in the name of justifiable homicide.

The district court, though, fell for the defense argument that the initial aggressor instruction should not be given in this case. Quite frankly, the district court was wrong. To give jurors a proper understanding of self-defense, the initial aggressor instruction should be given. The case the district court relied on didn't say not to give the instruction; it just said that the jury should be properly instructed that the initial aggressor can't just say something inflammatory, for example, but has to either use force or threaten force.

From Juror B37's interview and her explanation of the question the jury asked about manslaughter, this was exactly what the jury wanted to know. They were wondering if self-defense only mattered at the actual instant of the shot, or if factors from earlier on should count as well. They were trying to get at whether it mattered who started the confrontation. They just didn't know the right language to invoke, so they asked a wishy-washy question about what does manslaughter mean.

Had I been on that jury, I would have known to ask why the initial aggressor instruction wasn't included. I probably would have asked, "If we find that George Zimmerman was the initial aggressor, does that limit his ability to claim self-defense?" Or something like that. This jury literally had no idea that the law in Florida is that the initial aggressor can't claim self-defense in the same way the non-instigator can. But it appears that at least one or two of them would have invoked that perfectly legal concept if they had only known of its existence. (I have no doubt B37 would still have voted acquittal, but she says there were others who wanted to find something but felt utterly hamstrung by the law.)

And now Juror B37 is calling for the self-defense laws to be changed. Which is frustrating beyond belief because THEY DON'T NEED TO BE! She isn't talking about Stand Your Ground, because the initial aggressor thing applies to that claim, too. (Stand Your Ground laws should be changed, but that really isn't the legal concept that kept the jurors from convicting Zimmerman.) What she is talking about is the idea that self-defense can be invoked at any time by any person without regard to what happened in the 5 minutes leading up to that decision to use lethal force. She is talking about the initial aggressor concept. She is talking about the completely valid portion of Florida law that she and her fellow jurors were totally unaware of because the district court didn't give them the entire self-defense picture.

I can't say that the verdict would have been different had the jury been fully instructed on all of the relevant self-defense law. But I can't say it would have been the same, either.

Tuesday, July 16, 2013

Oh, Juror B37, you just make it too easy

I'm not going to say anything about the George Zimmerman verdict. As a defense lawyer, I'm ok with it. As a human, I'm not ok with Zimmerman's actions. I'm not ok with him thinking this verdict means his actions were perfectly ok. And I'm really not ok with him still carrying a gun wherever he goes.

But holy cow, I am fascinated by Juror B37! This lady is tone deaf, unaware, willfully ignorant and proud of it, disconnected, skeptical to an insane degree. I mean, this woman. She's left me speechless and yet with so very many avenues of response.

First, her voir dire is available to view up on Gawker. What I found interesting about that is how proud she is to be one of those people who just doesn't have time for anything. She doesn't watch t.v. She doesn't read. She doesn't surf the net. She just feeds her animals. Let me admit right now my bias against these people. These people who are above it, who are too good for the world. There's nothing virtuous in wrapping yourself in willful ignorance, in isolating yourself from your community. But she says these things with pride. I guess I'm just a lazy nogoodnik because I have all this time for reading the news, watching television (both edifying and craptastic), surfing the internet to expose myself to a wide variety of ideas and perspectives, and because I take a tremendous interest in the issues relevant to my community.

She also in this voir dire talked about how so many things can't ever be known. The media can't be trusted and never tells the truth. Even if they did, you could never possibly be getting enough information to make a full decision. You can just never really know. I hate this attitude and I think it's one of the most destructive trends in our current culture. There's nothing virtuous in insisting you can't ever really know something unless you were there. This is the same attitude that underlies unwillingness to accept the reality of climate change, evolution, and other well-settled scientific concepts.

I'm all for skepticism. I am an atheist, after all, because I can't take things on faith. But I can be convinced. When there's sufficient evidence, I can come to a conclusion. I think it's a weakness not to be able, or willing, to come to conclusions. People should have open minds and wait to hear evidence from multiple sources before coming to a conclusion, but they should feel free to at that point come to a conclusion. If they refuse to allow themselves to be convinced even when all of the evidence is in support of one side, that's not a good thing.

Juror B37's now infamous interview with Anderson Cooper makes it abundantly clear that she would do well to open herself up to the greater world around her. She would do well to read a book, a magazine, watch some documentaries, anything to get her out of her incredibly narrow viewpoint. Unwilling even to consider that race played a role in this case in any way. (It wasn't Martin's race that got Zimmerman's attention, just "circumstances" without even the slightest idea that his race might have been one of those circumstances.) Utterly condescending to Rachel Jeantel, feeling sorry for her lack of communication skills and education, projecting that Rachel felt "inadequate." Clearly unable or unwilling to picture the situation she was charged with judging from the perspective of the dead Black teenager. (Probably unable as she's never exposed herself to the kinds of reading or viewing or broader world experiences that help us view situations from perspectives beyond our own.)

It's not a matter of questioning her ultimate verdict so much as shaking one's head at the complete lack of awareness this woman displays. Did she have no clue at all how she sounds? Willfully ignorant, myopic, sheltered and proud of it. She must not have because she originally thought she would write a book about her experiences in this trial. It would make sense if she never exposes herself to anything outside of her small life that she would have no sense of how others might perceive her. I'm guessing she did not expect she would receive quite this much negative feedback. I certainly suspect she has no idea there are certain code words and phrases people associate with racism, so she wouldn't have any clue they were peppered throughout her interview. Now, 4 of her other 5 jurors have issued a joint statement distancing themselves from her Anderson Cooper statements, so at least those 4 recognize how tone deaf she appears to be (or at least they recognize that a large segment of society sees her that way and don't want to be tarred the same way).

After being introduced to this woman, via her voir dire and interviews, what I really want to do is subscribe her to a variety of magazines and send her a big shipment of books. I've got some documentaries in mind I would like for her to watch. And in return, if she had some similar recommendations for me, I would read or watch them. I do like to be introduced to new perspectives, after all.

Friday, July 12, 2013

An Open Letter to Ohio Prosecutors

I would like to introduce you to a concept with which you are obviously unfamiliar. It is called "the point of diminishing returns." It is the idea that in pretty much any human endeavor, there comes a point where more stops being better.

Let me give you an example. Say you like cheesecake and so you buy yourself a very nice cheesecake. Not just a piece, but the whole thing. You start to eat it and it is, in fact, as divine as you could have hoped. You enjoy bite after glorious bite. But then, you start to feel full. You enjoy the next bite a little bit less. And a little bit less. And a little bit less. Until you stop. If you don't stop, the bites will just taste worse and worse because there will be no more room in your body. Eventually, you'll throw up and then maybe you'll never be able to enjoy the taste of cheesecake again.

The point at which putting another piece of cheesecake into your mouth would be unpleasant is more or less the point of diminishing returns when you should just stop. Heck, there's a good argument to be made for stopping long before you get to that point.

How is this concept relevant to you, you might be asking? You have now filed 977 specific charges against Ariel Castro, the (alleged) Cleveland kidnapper/rapist guy. That is absurd. 977 charges is way, way past the point of diminishing returns.

I'm not entirely sure what your sentencing grids or ranges look like in Ohio. But I feel fairly confident that something like 4 counts of kidnapping and 10 or so counts of rape would net you more than enough convictions to absolutely, 100% insure that Mr. Castro's sentence would be far, far longer than his life expectancy. Add in those two murder counts you've charged and there really is no practical possibility that he would run out of prison term before he runs out of life.

Once you get past about 10 or 20 serious felony counts, you stop gaining anything by piling on additional convictions. It just isn't physically possible that a defendant, even a really despicable one who held 3 women and a young girl hostage for a decade, could serve 500 years in prison.

All you do by charging 977 specific counts is overwhelm everyone involved in the case and needlessly waste precious court resources. A legal assistant had to type in that entire 977 count charging document. Make copies for everyone. If about 5 counts fit per page (a rough guess from my experience), you're looking at a document around 195 pages long. Think of all the paper you're wasting. The cost of mailing that document to the relevant parties, or just the pain of carrying it if you opt for personal filing and service.

Then there's the amount of time it will take all of the lawyers and the court to read that entire document. The defendant is entitled to have the court read all of the charges against him in open court. Should a simple arraignment take 2 days? The potential jury instructions on that many counts would be even longer than the complaint. Oy, I don't even want to think about how long it would take the court to read jury instructions on 977 counts. The jury instructions would be the length of a Russian novel, and not the "short" one, "Crime and Punishment."

Signing the verdict forms would take days and would probably leave the jury foreperson with carpal tunnel.

We haven't even talked yet about how ridiculously long a trial would take if the parties had to pay attention to the facts necessary to support the elements of every single one of the 977 counts. It makes my head spin to think about.

More is not better. Justice does not demand you file 512 different kidnapping counts. Truly, 4 will do. As for the 446 rape counts, I respect the idea of not wanting to say there are just 3 counts, one for each of the 3 women. But how on earth are you going to introduce testimony of 446 specific sexual events? Do these women really remember that many specific dates and instances? Is making them rehash the details of that many specific instances really the best thing for their own healing? When perhaps 3 or 4 counts per victim would more than max out this man's sentence?

Save yourself, the defense, the court, the jurors, and all the support staff who has to handle this case a whole lot of trouble. Wade through the victims' stories and find the 5 most compelling claims for each of them. Pursue those, and only those, charges. The practical sentence for Mr. Castro won't be any less this way than it will be if you pursue all of those 977 charges. But a very large, ugly trial will be prevented from turning into a decade-long circus that overwhelms all involved. Oh, and the taxpayers will probably appreciate it if you don't needlessly waste the millions of dollars these additional, unnecessary 950 counts will add to the final bill.

Filing this many charges doesn't make you look tough; it just makes you look reckless, greedy, and undisciplined. Just like eating too much cheesecake, it's probably going to make you very, very sick.

UPDATE: The indictment was far longer than my understatement (what can I say? I put the brief in legal briefs). It was actually 576 pages. My arms hurt just thinking about picking up that office file.

Tuesday, July 9, 2013

In which the George Zimmerman prosecutors tick me off

Look, whether he's convicted or acquitted, George Zimmerman is morally responsible for Trayvon Martin's death. On a personal level, I'm not on Zimmerman's side here because guys like him, wannabe heroes who carry guns and think they can take on bad guys themselves (and are apparently eager to see bad guys), scare the living daylights out of me. I don't want the George Zimmermans of the world patrolling my neighborhood because I don't want people to get shot. It's undeniable that if Zimmerman hadn't been out there patrolling, Martin wouldn't have gotten shot. Also, I've been in Martin's shoes of walking home after dark and realizing someone is following you. It is terrifying and from my view even if the person being followed initiated conversation, the follower is the aggressor.

So there's my disclosure before I rant about something that happened in the Zimmerman trial today. The defense put on a forensic expert who testified that Martin's gunshot was consistent with Martin having been on top of Zimmerman. It was good testimony from the defense, especially if you think it's important for the self-defense claim who had the upper hand in the struggle at the moment of the gunshot.

What did the prosecution do to try to discredit this expert on cross? The prosecutor asked the expert how much money he was getting paid. Suggesting this professional with all his credentials was biased toward the people who paid him. That he would risk his career, his license, his freedom even (perjury is a crime, after all), to collect a fat check from George Zimmerman. 'Cause that makes sense.

This line of questioning happens in pretty much every trial whenever the defense has the unmitigated gall to put on an expert who doesn't work for a state crime lab. It is offensive, infuriating, disingenuous. It is also (infuriatingly) entirely effective with jurors.

It's too late in the day for me to write a long, scholarly discussion on this topic. (It's one of a couple of topics I'm kicking around for a law review article.) So instead let me just state how awful this line of questioning is, how utterly unfair it is that prosecutors are allowed to suggest defense experts are biased paid liars while their experts are all altruistic saints who just speak truth for no compensation.

The state has crime labs and medical examiners at the ready, experts who are all on salary and thus don't submit hourly bills for their time on each case. Somehow, people seem to think this makes the coroner who did the autopsy or the DNA analyst from the crime lab qualitatively different from the experts employed in private practice the defense has to go to. Since we get hourly bills, the argument goes, our experts are lying money whores.

Ugh. The whole thing makes me angry. Shame on prosecutors for putting the idea out there. Shame on courts for validating it as a legitimate point. And shame on juries for falling for it.

- Posted using BlogPress from my iPad

Thursday, June 27, 2013

Ordinary people

I know this is just a silly little blog with cartoon drawings in the header. I know I talk about my dog and shoes and sports too much to be taken too seriously. I know it's too much to hope that anyone associated with the United States Supreme Court actually reads this.

But for this one post, I really hope they do. Because the justices who make the law all the rest of us live with need to see this video.

In both 4th and 5th Amendment jurisprudence, the concept of what the ordinary person would feel free to do factors in. Would the ordinary person feel free to disregard a police officer? To walk away? To invoke the right to silence in the face of police questioning?

In case after case, I have been frustrated by how willing SCOTUS and therefore lower courts are to ascribe to ordinary citizens rather extraordinary abilities to resist the power of a person in a police uniform, complete with badge, handcuffs, and handgun at the ready. According to a pile of case law, ordinary people in the US feel free to walk away from uniformed officers in all sorts of circumstances. What I know from this is that the justices of the United States Supreme Court don't often find themselves getting pulled over by cops or being stopped on the sidewalk by cops or opening their doors to cops or being asked questions in interrogation rooms by cops.

The judges and justices who makes these decisions should be confronted with the reality of what it's like when ordinary people are confronted by police. In this video, a young woman was driving home to her husband or boyfriend and their 2 week old child. She was pulled over for a broken headlight. Hardly a big, bad infraction. Usually the sort of thing a driver gets a warning for that can be wiped away if the driver shows up at the police station within the next 2 or 3 days with a fixed light. But ordinary people get very nervous when they're pulled over. Heck, this nervous person breaks into a cold sweat when she gets a phone call from a number she doesn't recognize because I always jump to the assumption I'm in trouble in some way. (I'm not, and I'm not sure what "trouble" I think I would be in anyway; it's a weird pathology I seriously need to get over.) But the point is nervousness isn't an unusual reaction to being confronted by uncertain situations.

This woman's nervousness seemed out of the norm to the police officer who pulled her over. So he assumed she was on drugs. To assess his assumption, he instructed her to lift up her shirt, pull her bra away from her body, and shake out the bra. While this was a big step up from conducting an invasive cavity search on the side of a highway, it's still pretty egregious. She wasn't exposed and she wasn't subjected to any physical search, but it was demeaning all the same. It's still something the officer had no business demanding the woman do. And it's still something the woman felt utterly powerless to resist. So now there is a dash cam video of this woman pulling her shirt up and shaking out her bra on the side of the road.

I hope the judges and justices who rule on criminal cases see this video. I hope they start to rule with an honest perspective on the authority uniformed police officers wield. Ordinary people don't feel free to walk away when a uniformed police officer is talking to them. Ordinary people don't feel free to disregard even obviously obnoxious commands by uniformed police officers. Ordinary people know that uniformed police officers have guns and handcuffs and are free to use them. Ordinary people don't want to be arrested or shot. So ordinary people comply. The fact that this very freaked out, very nervous, very ordinary young woman complied, though, does not make what happened to her a consent search. We need the judges who rule on these kinds of cases to understand that.

Wednesday, June 26, 2013


500 people is a lot of people. It's about 10 NFL teams. More people than get to be starters in the NCAA tourney. About twice as many people as I graduated from law school with. More people than my high school graduating class. More people than my college graduating class. My entire state agency doesn't employ close to that many people. Even the biggest airliners we fly on stop short of holding 500 passengers. 500 people is a lot of people.

As of 7:37 pm ET, 500 people is the number of people the state of Texas has executed since 1976.

It is a staggering number. Appalling. Horrifying. The state of Texas has intentionally ended the life of 500 living, breathing human beings. And that's only since 1976. You know they executed a lot of people before 1972 as well.

What are they getting for it? It certainly doesn't appear that they're running out of candidates for their death chamber, so I doubt they're making a big dent in their crime numbers. But they just keep killing people. After a while, it feels like they're just killing people to kill people.

If it ever seems like I pick on Texas too much, like I'm too harsh on that entire state, too easy to find fault with it, this is why. They just kill too damn many people.

Marketing 101

I have the pleasure of living near one of those churches with the signs out front. The messages are very occasionally advertising actual church business, like Vacation Bible School or special holiday services. But most often, they're that kind of punny or pithy message seemingly aimed at non-believers, trying to get us to come to the church. My dear friend and I love to drive by and read those messages, often sending those messages to each other if they really catch our fancy (meaning our funny bone).

Today's message:

"If you're dead and it's still hot, it's too late."

I kinda want to go find whoever is in charge of this sign and offer them some free marketing advice. I feel like I'm at least part of their target audience with this sign. So there's a part of me that wants to let them know how woefully off-the-mark they are if they really want to try to convince people to come to Jesus. Threats of burning in hell pretty much stop working to convert people once they get past age 10 or so. So telling people that they should come to worship your god because if you don't, said god will condemn you to an eternity of hell is not effective marketing. Maybe just focus on the love part, not the "or else" part.

But if I gave them advice, they might come up with better signs and then I'd lose my weekly chuckle.

One quick(ish) point on DOMA

There's one misconception that a lot of people are expressing about today's Defense of Marriage Act (DOMA) ruling, so I just want to set it straight briefly. Some are saying, "Huzzah! DOMA is dead!" Some are ruefully shaking their heads saying, "No, Section II is still barring full faith and credit for same-sex marriages." Section II is the provision that says states can refuse to recognize same-sex marriages lawfully entered into in other states.

The Huzzahers have the right idea. The rueful head-shakers shouldn't have expected a Section II win as that issue wasn't involved in the case at all. Invalidating one section of a statute almost never results in the entire large law being invalidated. But more importantly, Section II isn't the real reason why those states that ban same-sex marriages are allowed to refuse to recognize such marriages from other states. Section II was just a codification of existing interpretation of the Full Faith and Credit clause of the US Constitution.

This is kind of arcane legal stuff that maybe only hard core legal geeks have any idea about. Full Faith and Credit most traditionally applies to court judgments. If I have a money judgment against you in Kansas, you can't move to Missouri and think then you'll get out of paying it because Missouri will enforce that judgment for Kansas. That kind of thing. It has long been the law, though, that a state can't be forced to do things by other states that would violate that state's public policy. A lot of it comes down to the difference between court judgments and legislative enactments. Then there's the difference between recognition and enforcement. (As in a state that doesn't allow same-sex couples to adopt has to recognize the legal rights of parents who lawfully adopted children in a different state, but that state doesn't have to issue a birth certificate that would violate its own laws.) It's all very detailed and complex and I'm not well-enough versed in it to explain it very well.

The only thing any lay person really needs to know about all of this is that even without DOMA, states are free under current full faith and credit jurisprudence to refuse to recognize marriages performed in other states that are "repugnant" to their own state laws. At least there isn't any Supreme Court case that says they aren't free to do so.

In fact, I researched this recently as it relates to first cousin marriage. There are 3 states in this country that do not recognize any marriages between first cousins, regardless of where those marriages were performed. Just as an example. So same-sex marriages entered into in Iowa aren't the only marriages Arizona refuses to recognize. My cousin who lawfully married his cousin in a New England state had better not move to Arizona.

The point is that this scenario changing does not in any way hinge on Section II of DOMA. As it stands now, states are free to decide they will recognize same-sex marriages from other states. And as it stands now, the law surrounding full faith and credit does not require states to recognize such marriages if they don't want to. To change this, we need a broader discussion on full faith and credit and we need it to get up to the Supreme Court. DOMA doesn't even have to be involved for the full faith and credit issue to be challenged.

Or we could just get with the 21st century and get same-sex marriage legalized and recognized in every state already. That would take care of it, too.

Well that was interesting, Scalia

Everyone today is talking about the fact that both the federal benefits/definition of marriage provision of DOMA is unconstitutional and that Proposition 8 in California is dead.

From the perspective of an appellate lawyer who read the transcripts of the argument, the DOMA decision isn't at all a surprise. The writing was on the wall on that one at argument. The only justice we were iffy about was Justice Kennedy, but his questions/comments at argument assured me, anyway, that his vote was going to be on the right side. It's a somewhat straightforward decision, though I'm not convinced it had to stray so far into federalism, but I'll concede that's not an area of the law I'm an expert in.

Justice Scalia's dissent in the DOMA case was predictable, too. If you've read his previous dissents on similar issues, notably the 2003 sodomy case Lawrence v. Texas, you should have expected he would issue a rollicking dissent. He didn't disappoint, with a dissent as long as the opinion of the court. My sense of Scalia is that the less sound, rational basis he has for his ruling, the more he blusters. He blustered an awful lot in Lawrence v. Texas and he blustered a lot today. He didn't just bluster about one thing, either. First, he blustered about the Court even ruling on the case because there's no jurisdiction. There was some bluster aimed at the Obama administration for refusing to challenge the original district court ruling that was in the plaintiff, Edie Windsor's, favor. The best bluster, of course, was on the topic of same-sex marriage itself. There's a whole paragraph about overcooked loaves and bad recipes.

There's a really disingenuous argument that this will bring chaos for those same-sex couples who marry in one state and then move to a state that don't recognize such marriages. A) That chaos exists whichever way the DOMA federal benefits provision goes. You're marriage is valid in one state, not in the other, and the feds will go with one state or the other. B) There are other marriages already in existence, marriages between one man and one woman, that are recognized in one state and not in another. First cousin marriages are not ever recognized in three states. (No first cousin marriage jokes: I have a cousin who married another cousin, and they are both bright, educated people.) So some marriages are already in that limbo and the federal government does not collapse under the weight of the chaos. He's all sound and fury about how outrageous it is for the majority to suggest it is only animus against gays and lesbians that led to DOMA (as if he wasn't alive when DOMA was being debated and passed).

So what we (didn't really) learn (because we already knew) from this dissent is that Scalia doesn't like the gays and doesn't like anyone suggesting it's just animus on his part that he doesn't like them. He just gets to morally disapprove of them and so does the law and that's that.

All of which makes what happened in the Prop 8 case so very, very interesting. Because the effect of the Prop 8 ruling is that Prop 8 is unconstitutional. But SCOTUS didn't say that. The federal district court judge, in a ruling I blogged about here, found it unconstitutional. Then what happened is that the relevant state authorities declined to appeal that decision. (Unsurprising as the trial was thorough and roundly recognized as offering no legitimate basis whatsoever for Prop 8, establishing it was a pretty indefensible law.) So then private citizens who had been involved in passing Prop 8 stepped in and pursued the appeal. SCOTUS today decided that those people did not have standing as required by Article III of the Constitution, so the court couldn't rule on the merits of their petition. Neither could the Ninth Circuit. So Judge Walker's ruling is the final say on Prop 8. Prop 8 is dead. Same-sex marriage is good to go in California

And Scalia was in the majority! So Scalia who hates the gays and thinks that's a perfectly valid justification for anti-gay laws actually took part in paving the way for same-sex couples in the most populous state in the nation to marry at will. One thing I know about Scalia is that he can always get to the result he wants, so was this the only way he could get enough votes to avoid the result he really, really didn't want? Which makes me desperate to know what on earth the negotiations in the justices's chambers were like. What discussions were going on? What possible rulings were on the table? Was there some game of chicken between Ginsburg and Scalia? Was she saying give us Prop 8 or we'll go all the way on marriage equality? Were Breyer and Kagan reluctant to go that far and thus happy to go along with this punt on Prop 8 as it gets to the right result on that particular law?

The negotiations that go on behind closed doors at the Supreme Court to reach coalitions in particular cases can be the stuff of legends. The most famous example is what was done to achieve a 9-0 ruling in Brown v. Board of Education. Chief Justice Earl Warren recognized the significance of reaching a unanimous opinion and worked carefully to make sure he got one. Then there was the famous switch in time that saved 9. There doesn't seem to be too much of that kind of stuff taking place in the modern court. (Justice Roberts's switch on the Afffordable Care Act might be remembered.) They don't seem to do much to find areas of consensus; they just issue a series of 5-4 decisions.

So when we get an odd vote split like this one (5-4 though it is, it's an odd combination of justices on each side), it piques my curiosity on how exactly they got there. And what other possible decisions could have been reached. Was there a possibility of not getting a 5 vote majority if they didn't go with the Article III argument?

Justice Kennedy was in the minority, the group who would have moved on to the merits of the case, along with Sotomayor, Alito, and Thomas. Here's my theory. I've long thought Judge Walker's long, well-reasoned decision on the Prop 8 federal trial was written directly to Justice Kennedy. I think it was a thorough integration of Kennedy's rulings leading to the inevitable conclusion that same-sex marriage bans are unconstitutional. I am not the only court observer who saw it that way. I think Kennedy took that bait. I think he was itching to write a majority opinion granting marriage equality across the land. I think Sotomayor was ready to go with him. I suspect that some combination of Ginsburg (though I suspect not so much her), Breyer, and Kagan were a little more reluctant to go that far, so they were ok with the Article III out. But if Scalia had refused to go along with it, would those three have joined up with Kennedy and Sotomayor to give marriage equality proponents the decision they wanted?

Did Scalia just accept same-sex marriage in California to avoid it nationwide? I hope we get the story someday.

Tuesday, June 25, 2013

Chaos, thy name is the Texas Senate

You know how when you go to weddings that involve people you aren't all that close to, you secretly kind of think it would be kinda fun to see a wedding that went all south? Someone saying, "I object!" An ex running down the aisle at the last minute? No? Just me?

Well, ok, but surely you've seen the news coverage of some giant brawl in a foreign parliament (it's always parliaments) and thought what fun it would be to watch someone punch Paul Ryan in the face? Ok, not just me.

We kind of got something pretty close to that in Texas tonight (last night now). The Texas Senate had until midnight to vote on a wide-ranging (some, like me, might say draconian) anti-abortion bill that had already passed the House and would surely be signed by the Governor. So the last hope was a filibuster to kill debate. That filibuster had to last until midnight. Wendy Davis did her best, but the guy in charge of the Senate was pretty clearly going to kill her filibuster and get the bill to a vote tonight come hell or high water. (He'd said as much.)

It was all a fairly moot point, too, as the Governor could easily just call another special session which would be safe from a filibuster from a time perspective. The bill clearly has the votes in both houses, so why not just let Davis have her filibuster and move on? But, no. There were shenanigans. Parliamentary inquiries to eat up time. Claims that Davis broke the rules, all of which were upheld (wrongly in my view). The crowd (the vast majority of them were there to support Davis in the filibuster) erupted. More parliamentary inquiries. Some motions. A second attempt at filibustering that was also killed.

The best moment of the night was another female Democratic Senator, Leticia Van De Putte, making the most epically awesome parliamentary inquiry ever, "At what point must a female senator raise her hand or her voice to be recognized over her male colleagues?" (The chair had declined to recognize her for a motion, turning to a male Republican instead.)

Then came the crowd filibuster, the chaos, the inability of the Senate leader to conduct a roll call vote because no one could hear. Now there are Republican claims that a vote on the abortion bill was taken and it passed. Democrats are saying it wasn't taken until after midnight so it doesn't count. Chaos and disorder have taken over.

What started out as a rare, fun, and beautiful thing -- one person standing up for something she believes in, following a time-honored tradition that says it's her right to do so -- has turned into the most embarrassing spectacle in politics that I've ever witnessed. It got as close to the silly brawls I've seen in foreign parliaments as anything I've seen in American politics. I didn't actually see a punch, but I guess it'll do.

Still, it's a pretty sad statement on how far our political civility has devolved that we can't even agree on whether a bill has passed. It was an engrossing evening from my perspective. I do enjoy political theater. But maybe it would be better to live in a less politically dysfunctional atmosphere where order and civility actually reigned. As of an hour and a half after the midnight deadline, the Texas Senate still isn't quite sure whether the vote counts or whether they're adjourned. That's not a banner night for American government.

Thursday, June 20, 2013

Atheists have beliefs, too.

I am an atheist. If you've been around here long enough, this isn't news to you. But it's probably also not news to you that one of the surest ways to offend me is to suggest that I don't believe in anything. One need not believe in a higher power, an all-mighty being, to have very sincere and deeply-held beliefs about the world. I've been asked (by someone I thought was pretty enlightened and educated) why I'm so opposed to the death penalty if I don't believe in any god. I was a little floored by that question because I didn't know that anyone really equated being an atheist with seeing life as one big hedonistic free-for-all where anything goes.

I believe in a lot of things. I have deeply-held beliefs about what is right and wrong, about how to treat my fellow humans, and how to treat dogs (especially red-headed cocker spaniels). I believe killing people is wrong, so I oppose the death penalty. And for myself, I oppose ever, ever handling a gun. I am that person who would be tortured for the rest of her life if I ever actually had to act in self-defense such that another person died. You can think that's silly, but that's how strongly I believe in not harming another human being.

Somehow, a few years ago I wound up researching a topic for a case that led me to the caselaw about conscientious objectors during the Vietnam War. (Stay with me.) I think I was researching the legality of removing prospective jurors from capital juries based on their religious opposition to the death penalty. I think I was looking for research on the idea that one's deeply held moral and philosophical views don't have to be tied to a particular religion to receive some respect under the law. Because, of course, my opposition to the death penalty isn't tied to any particular religion, but it is based on deeply-held moral and philosophical views that fill the same place in me that religious beliefs fill in those who subscribe to a religion.

This research didn't lead to any novel issues for any of my cases, but it did teach me that for US Supreme Court purposes, I was right: that the deeply-held moral and philosophical views of non-believers are respected by the law the same as the deeply-held moral and philosophical views of those who subscribe to particular religions. During the Vietnam War, many young men who were drafted objected, arguing that they were conscientious objectors whose deeply-held moral views did not permit them to take up arms. Young men who had life-long connections to the Quaker Church were being allowed to get out of combat roles without penalty. Young men who were just non-religious pacifists, though, were being imprisoned or otherwise penalized for their objecting. They were being denied protection as conscientious objectors. The US Supreme Court put an end to that. In a line of cases (the most cited of which is U.S. v. Welsh), SCOTUS said that the deeply-held moral and religious views of non-believers were also worthy of respect, saying in essence we can't let people whose sincere moral beliefs lead them to oppose taking up arms get out of combat roles if they can identify a particular religious text they follow but screw those whose sincere moral beliefs stem from something other than a religious text. The bottom line: atheists, too, can qualify as conscientious objectors. Woot!

(I never really worried about that what with not being subject to the draft and being female, but if pressed, I do think I would be able to find enough people who've known me long enough to say, "She really, really couldn't ever raise a weapon against another human being." I hope.)

So it was with this in mind that I read this story about an atheist applying for US citizenship. Margaret Doughty has lived in the United States for over 30 years. The application for naturalization requires applicants to pledge to bear arms in defense of the nation. (Those of us who are born here are never asked to pledge that, which is good for me. I defend my nation's founding principles every day, but not with a gun.) Doughty wrote a thoughtful answer that while the question didn't seem relevant to someone her age (64) and sex, she couldn't lie and had to say she wouldn't be able to hold bear arms. The response? The United States Citizenship and Immigration Services told her she needed to provide a letter from a church! That she belonged to! Ok, not a church: a nonviolent religious organization. She needed to prove that her conscientious objector status was due to religious beliefs.

Which means that after 40 years after Welsh (a 1970 case), officials of the US government are still instinctively discriminating against atheists, implicitly reacting from a view that deeply-held moral beliefs must be tied to a particular religion to be worthy of respect. Oy.

The good news is that the Humanist Legal Center took up Doughty's cause and wrote a sternly-worded letter on her behalf. (I kinda wish my area of law involved more sternly-worded letters because I would enjoy writing them.) In response, the pinhead bureaucrats who insisted she provide a religious affiliation to have her moral objections to war be respected backed down. Doughty's application for citizenship was approved today. So I extend to her the heartiest godless Huzzah I have.

And I would encourage those bureaucratic pinheads to remember in the future that atheists have morals and philosophical beliefs, too. Ours are as deeply-held and as worthy of respect as those of any religious persons. Oh, and would it kill you to know the law as it relates to your job??
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