Good news for drinkers

How many times have you read about a drunk driving accident in which the drunk driver was just fine but the other driver didn't make it? It always seems like such a cruel twist of fate that the person most likely responsible for creating the deadly situation survives while someone else has to die. Turns out, there is a medical explanation for this phenomenon. Alcohol may protect the brain from traumatic injury. It's always interesting to me when anecdotal observations like this turn out to be true and to have reasonable explanations.

I think the lesson here is that drunk driving saves lives, just the wrong lives. Obviously, people still shouldn't drive drunk. But maybe getting a little soused before being a passenger on a car trip isn't such a bad idea. And maybe we should re-think open container bans for passengers. We make passengers buckle up, so why not make them drink up? It's for their own protection.

I wonder how MADD will respond?

Trial things that have been annoying me lately

1) Stupid arguments. Usually by prosecutors, sometimes by judges, and on occasion even by defense attorneys (but not this defense attorney, of course). I think we need to establish a new objection basis for trial attorneys. We need to be able to say, "I object to counsel's argument, your honor, on the grounds that it's just plain stupid." Like, for example, the prosecutor in the Todd Willingham case (the innocent but executed arson defendant I've written about before) who argued that Willingham must have killed his kids because he had previously tried to kill his kids by beating his wife when she was pregnant. He further argued that Willingham should be executed because he was clearly a devil worshiper because he had an Iron Maiden poster on his wall. The problem with these stupid arguments is that sometimes the emotional appeal of the arguments can be so strong, it can be hard to recognize the sheer stupidity.

2) "Whereupon a bench conference was held outside the hearing of the court reporter." There is no excuse, absolutely none, for anything that goes on in a courtroom not being recorded. Ever. Even if all parties remember to restate the discussion later on the record, that's really no good substitute for the original discussion which led to the ruling. And sadly, the parties don't always remember to make a record of that discussion later, which then leaves the defendant suffering later when he can't show the appellate court what his actual objection was. Along these same lines, the court reporter should record everything that is said in the courtroom, even the reading of the instructions to the jury, because you just never know when a judge will misspeak or something will happen that does need to be memorialized for an appeal.

Plaxico goes to prison

Does anyone actually feel any safer now that Plaxico Burress is behind bars? He's the NFL wide receiver who plead guilty to a firearms charge after accidentally shooting himself in the leg at a nightclub. He did not have a license to carry a handgun in New York. (But as I understand it, he had legally purchased the gun and did have it properly registered in another state.)

Look, we can debate the wisdom of carrying guns. (I'm personally would never touch one.) We can certainly question whether he was reckless with his. Fortunately, he managed to hurt only himself. And we can discuss the need for proper registration of guns and and certification for their owners (but in a post-Heller world, the defense attorney in me really wants to take on the law Burress was convicted under).

But regardless of any of these issues, I just can't see how the world is better off by putting Burress in prison for two years. He suffered plenty of pain and humiliation by the injury to his leg, didn't he? For a world-class athlete who makes his living by using his legs, there's not much more effective punishment than a little leg damage. What can two years in prison add? That will be two years away from his kids, one of whom hasn't even been born yet. His children will most definitely not benefit from two years without their father. Two years that he won't be able to earn an income, and in his profession, he has a limited earning window. Two years that he'll have to live in a cell, which may be something he'll never be able to shake.

Why do we have such a limited concept of how to respond to rule-breakers? There have to be better ways to deal with people who violate laws. We have a ridiculous percentage of our population behind bars, and they aren't all there for committing violent felonies. For far too long, we have been operating under the "when in doubt, lock 'em up" theory of sentencing. But that theory isn't doing us any good. Our prisons are busting at the seams and costing us hundreds of millions (billions?) of dollars. Imprisonment really ought to be a last resort, not a presumption. Prison just can't be the answer to everything.

Wait for it

Of course when I was a teenager, I watched "Doogie Howser" and loved our little over-achiever. But then we kind of lost track of his portrayer, Neil Patrick Harris, for a while. He grew up and did some Broadway.

He first came back on my radar when he appeared on Celebrity Poker Showdown. He was so charming as he crushed poor Shannon Elizabeth's spirit. And he now filled out a polo shirt better than I ever thought Doogie Howser would.

Then, about 4 years ago, he came back to a half-hour show, "How I Met Your Mother". I loved this show instantly, and did my best to get everyone to watch it. I tried to sell people on it by telling them what a discovery Neil Patrick Harris was. He plays Barney as the most loveable womanizer ever. He's awful and awesome and sweet and cynical and generally the most interesting character on t.v. He made me want to re-watch "Doogie Howser" so I can see if he was this amazingly talented back then. For years now, I've been telling anyone who would listen that Neil Patrick Harris is simply the absolute best thing on television.

This is all to say that if Neil Patrick Harris does not win an Emmy tonight for his legendarily awesome performance as Barney Stinson, I'm gonna go a little Kanye on someone.

UPDATED: Emmy, [tapping foot impatiently] I'd like to have a word with you... I am NOT happy with you right now. (But thank you for the shout-out to Pushing Daisies!)

Fighting crime through health care?

There really are smarter ways to fight crime than really long prison sentences. We all remember our grandmothers telling us an ounce of prevention is worth a pound of cure. I don't know if there is any realm in which that old adage is more true than in crime policy. The best way to reduce crime rates isn't to punish crime or deter crime. The best way is to prevent people from growing up to become criminals.

The interesting headline today on Newsweek's website is "Health Care Reform Can Reduce Crime." The article highlights a program operating in 29 states that assigns nurses to monitor teenage mothers for the first two years of their children's lives. From the article, I'm not exactly sure what support the nurses provide, but I would guess it could cover things like nutrition, basic health questions, and early childhood learning. The program was designed to improve health among the participants, but as a side bonus, the children served by this program were being arrested and convicted a lot less than children who weren't part of the program. I would assume those kids were healthier, too.

Why does a program like this affect crime rates? The article doesn't get into much detail on that point, either. But we do know that things like Head Start and early education can have huge effects on long-term success. Research has also shown that female participants in team sports have lower teen pregnancy rates and higher college matriculation rates. We also know that childhood nutrition is tremendously important. Providing these kinds of supports to children who are "at risk" (is that still the accepted term?) seems like a pretty good idea, then. Isn't it in all of our best interests to prevent children from becoming criminals?

Some congressional Democrats want to take the program national but some conservative groups and leaders oppose it. Sure, 'cause we wouldn't want kids with young, poor, uneducated parents to grow up healthier, more stable, and less likely to end up in prison. (Not to mention helping those young, poor, uneducated parents achieve success as parents.) I personally think anytime we stumble upon some little program like this, that seems to help people stay away from a criminal path, we should run with it. We need to be far more creative and comprehensive in our approaches to fighting crime. And apparently we might want to begin the fight at birth.

The police want to suck your blood

The Constitution doesn't apply to DUI. Those of us in the criminal defense bar have known this for years. They can require you to submit to a Breathalyzer and subject you to consequences if you refuse. They can use that very refusal as evidence of a crime. We find flaws with the breath tests and they just rewrite the laws so the flaws don't matter. There has to be an end. They have to hit some limit. At some point, the general public has to wake up and say, "Well, wait, you can't do THAT."

I would have thought that point would be when police officers start doing blood draws themselves, just out in the field. I would have thought most people would object to that. So far, officers in Idaho and Texas are being trained as part of a federal program. If that pilot program goes well (meaning yields lots of DUI convictions), there will be a push to train officers throughout the country. So we can have police officers pulling out needles on the side of the road. Sounds hygienic. Or I guess maybe they'd at least transport suspects to the nearest station. I'm sure all those police stations will be fully stocked with all the necessary supplies to do this properly and safely once they get their 10 hours of training in. And all without a warrant, because way back in 1966, the U.S. Supreme Court somehow concluded that police could have blood drawn without a warrant. (Not that it would take more than half an hour to call the on-call prosecutor and judges to get a damn warrant.)

Can somebody, anybody, please explain to me how we got from "no unreasonable searches without a warrant" to "police can jam a needle in your arm without a warrant and take your blood?" Because those two phrases don't seem to jibe to me. We the people really need to start objecting to this stuff. Convicting a couple more drunk drivers just isn't worth desecrating the 4th Amendment.

Badly done, Serena

I have never much liked Serena Williams. I always thought she was a little too arrogant, a little too ungracious about her opponents. I've always liked Venus, but Serena has always had an ugly side. But I never really expected to see her physically threaten a line judge the way she did on match point last night. Threatening to stuff a ball down the judge's throat, waving her racket at her. It was pretty nuts. I loved when Serena joined the judge and tournament referee Bryan Earley by the chair and denied saying she would kill the judge, a spectator called out, "Yeah, you did." I would think those spectators who were sitting right behind the judge know exactly what Serena said.

I hope the WTA responds swiftly and strongly. I hope they fine Serena. I hope they default her from the women's doubles final. (Unfortunately, that would also default Venus.) And I hope they suspend her. Baseball would. I know the NBA would issue a fine and I would think a suspension would be likely. The NFL would undoubtedly issue a fine. Because no one involved in a game can physically threaten people like that.

Maybe I'm just mad at Serena for putting such a very sour note on the last weekend of my favorite tennis tournament.