18 November 2004
Federal judge condemns sentencing laws
I think SL&P may have already blogged on this. Still, it is interesting to hear a judge say he is going to ask the President to commute a sentence he imposed.
17 November 2004
Sorry No Posts Tonight
I've been messing around with some of the various methods that Blogger now has for posting because I am headed out as of Friday (at the latest) on my way to Ohio. A friend and I are going to watch the Bengals play the Steelers on Sunday.
However, I need not abandon all of you. Assuming a connection for my Sprint phone I may be able to send pictures and will definitely be able to send voice entries. Now that I've figured this out you'l never get rid of me.
However, I need not abandon all of you. Assuming a connection for my Sprint phone I may be able to send pictures and will definitely be able to send voice entries. Now that I've figured this out you'l never get rid of me.
16 November 2004
Money, Money, Money, *Money*
Of course, nobody would realize that's not legal tender. 'Cuz it's not like it's a million dollar bill or anything.
LV SWVaLaw
Around the Web
1) If you work in a place where law firms pay a lot better than the federal government your federal cases will tend to go better. Causative or coincidental correlation?
2) "Near the end of the duty shift, alcohol-related investigations decrease substantially. This is particularly true in departments that have adopted relatively time-consuming procedures for processing alcohol-related arrests.
. . . . .
Suspect's sex also plays a role in the arrest/no arrest decision. Patrolmen seem more reluctant to arrest a woman for alcohol-related violations, largely because processing of a female arrestee is generally more complex and time consuming."
Much more of this interesting stuff found here . . .
3) Mr. DA breaks down the "Law Shows." He can still watch them; I cannot. I go nuts every time I watch Law & Order and see ethical violations and outright violations of the law (which seem to occur in every episode - but that's okay because the good guys are doing it).
4) Is it really the proper course of action for a Nanny to get drunk when she gets lost with her charge in tow?
5) Is "white collar crime" a stigmatizing label? I'm pretty sure that a lot of my clients would love to be considered white collar criminals.
6) You'll remember when the 5th Circuit expanded Buie searches so that a house could be searched even without an arrest? (see also here) Well now the 10th Circuit has ruled that police need not be constrained to the house when they do a Buie search.
7) Why not so many death penalty prosecutions? Because they will bankrupt the localities.
8) Credit card companies aren't responsible for infringement on porn distribution rights. [Yeah, I know it's not criminal but I just couldn't pass it up.]
2) "Near the end of the duty shift, alcohol-related investigations decrease substantially. This is particularly true in departments that have adopted relatively time-consuming procedures for processing alcohol-related arrests.
. . . . .
Suspect's sex also plays a role in the arrest/no arrest decision. Patrolmen seem more reluctant to arrest a woman for alcohol-related violations, largely because processing of a female arrestee is generally more complex and time consuming."
Much more of this interesting stuff found here . . .
3) Mr. DA breaks down the "Law Shows." He can still watch them; I cannot. I go nuts every time I watch Law & Order and see ethical violations and outright violations of the law (which seem to occur in every episode - but that's okay because the good guys are doing it).
4) Is it really the proper course of action for a Nanny to get drunk when she gets lost with her charge in tow?
5) Is "white collar crime" a stigmatizing label? I'm pretty sure that a lot of my clients would love to be considered white collar criminals.
6) You'll remember when the 5th Circuit expanded Buie searches so that a house could be searched even without an arrest? (see also here) Well now the 10th Circuit has ruled that police need not be constrained to the house when they do a Buie search.
7) Why not so many death penalty prosecutions? Because they will bankrupt the localities.
8) Credit card companies aren't responsible for infringement on porn distribution rights. [Yeah, I know it's not criminal but I just couldn't pass it up.]
15 November 2004
Dog Searches
As I'm sure everybody out there knows, supreme court decisions have declared that dogs are "sui generis" - this means they are magical entities which do something that if anything else did it would be an unconstitutional search. However, their thaumaturgic abilities allow them to do it constitutionally.
Last week the Supreme Court heard a case where a very, very obvious pretext stop (but of course we won't enquire as to the officer's actual intent) was used to hold a car while a dog was run past it. The dog found drugs which would never have been found otherwise. The question at hand was whether the police must have some sort of reasonable articulable suspicion of the presence of drugs (or whatever else the dog might be trained to find) in order to run the dog past the car.
Of course, "Justice Sandra Day O'Connor insisted that a 'sniff is not a search.' She said that as long as the canine remains outside the vehicle, the officer is not searching the car." [Of course, Ms. O'connor is the Queen of the Pragmatists [see paragraph 4 here] so this is to be expected.]
"Justice Stephen Breyer said that police officers can sniff for contraband during a traffic stop, so why not a dog? It's a fact of life, he said, that 'you might run into people and animals with sharp noses.'" [As sharp as a dog? What, are police forces hiring Animal Man clones now?]
"Justice Antonin Scalia points out dryly that the case law permits the use of indiscriminate dog sniffs at bus depots "and the republic seems to have survived." [Ah, yes. Just like the Republic survived a civil war, slavery, Know Nothings, &cetera. The fact the Republic has survived something isn't exactly a winning argument for its correctness.]
"Justice Anthony Kennedy ask[ed the State Attorney], "Have you any authority for [the proposition that if the search had been more narrow in Kyllo it would have been constitutional], other than Justice Scalia's speculation?" [Hmmm . . . I'm confused. Does this indicate that he disfavors Kyllo or dog searches?]
"Justice Ruth Bader Ginsburg said the very presence of dogs might be considered intimidating. 'Dogs can be frightening, or humiliating," she said. "It seems to me there's some association there with the idea that I have the right to be left alone.'" [The State's attempt to defray this by pointing out that in some cases beagles are used is hilarious. Every time I see a drug dog it's either a german shepherd or a malinois. And goodness knows those dogs are never trained to be aggressive in Schutzhund competitions.]
"We're opening a large vista for dog intrusion," said [Justice] Souter, adding that he was worried about officers canvassing garages and neighborhoods with animals. Police "can take a dog to a front door and ring the bell and see what happens." [Well, they can (and some) already do this without dogs.]
"However, Justice John Paul Stevens said an opening for run-of-the-mill dog searches would also allow the use of mechanical devices to search people." [Again the State attorney sparks hilarity by talking about mechanical dogs being just fine. Not sure how that's supposed to square with Kyllo.]
"As is his custom, Justice Clarence Thomas asked no questions." [However, he did blink three times more than normal; experts are analyzing that to see if they can divine his stance.]
If I had to wager, I'd bet on the Pragmatists winning this one. When the dog is circling your yard, your house, or your car just keep telling yourself, "It's not a search. It's not a search. The Supreme Court says it's not a search . . ."
Last week the Supreme Court heard a case where a very, very obvious pretext stop (but of course we won't enquire as to the officer's actual intent) was used to hold a car while a dog was run past it. The dog found drugs which would never have been found otherwise. The question at hand was whether the police must have some sort of reasonable articulable suspicion of the presence of drugs (or whatever else the dog might be trained to find) in order to run the dog past the car.
Of course, "Justice Sandra Day O'Connor insisted that a 'sniff is not a search.' She said that as long as the canine remains outside the vehicle, the officer is not searching the car." [Of course, Ms. O'connor is the Queen of the Pragmatists [see paragraph 4 here] so this is to be expected.]
"Justice Stephen Breyer said that police officers can sniff for contraband during a traffic stop, so why not a dog? It's a fact of life, he said, that 'you might run into people and animals with sharp noses.'" [As sharp as a dog? What, are police forces hiring Animal Man clones now?]
"Justice Antonin Scalia points out dryly that the case law permits the use of indiscriminate dog sniffs at bus depots "and the republic seems to have survived." [Ah, yes. Just like the Republic survived a civil war, slavery, Know Nothings, &cetera. The fact the Republic has survived something isn't exactly a winning argument for its correctness.]
"Justice Anthony Kennedy ask[ed the State Attorney], "Have you any authority for [the proposition that if the search had been more narrow in Kyllo it would have been constitutional], other than Justice Scalia's speculation?" [Hmmm . . . I'm confused. Does this indicate that he disfavors Kyllo or dog searches?]
"Justice Ruth Bader Ginsburg said the very presence of dogs might be considered intimidating. 'Dogs can be frightening, or humiliating," she said. "It seems to me there's some association there with the idea that I have the right to be left alone.'" [The State's attempt to defray this by pointing out that in some cases beagles are used is hilarious. Every time I see a drug dog it's either a german shepherd or a malinois. And goodness knows those dogs are never trained to be aggressive in Schutzhund competitions.]
"We're opening a large vista for dog intrusion," said [Justice] Souter, adding that he was worried about officers canvassing garages and neighborhoods with animals. Police "can take a dog to a front door and ring the bell and see what happens." [Well, they can (and some) already do this without dogs.]
"However, Justice John Paul Stevens said an opening for run-of-the-mill dog searches would also allow the use of mechanical devices to search people." [Again the State attorney sparks hilarity by talking about mechanical dogs being just fine. Not sure how that's supposed to square with Kyllo.]
"As is his custom, Justice Clarence Thomas asked no questions." [However, he did blink three times more than normal; experts are analyzing that to see if they can divine his stance.]
If I had to wager, I'd bet on the Pragmatists winning this one. When the dog is circling your yard, your house, or your car just keep telling yourself, "It's not a search. It's not a search. The Supreme Court says it's not a search . . ."
14 November 2004
Around the Web
1) Considering whether a prosecutor's mis-statement of the law is grounds for reversal.
2) In case you didn't know, your body creates alcohol all by itself. I knew it because it of a class on Alcohol and Society I took once upon a time.
3) Having your property stolen by federal marshals. Greeeeaaat.
4) The federal criminal courts are overworked? The courthouse here in Richmond has the feel of a funeral home it's so dead. I'm not sure it handles as many people in a week as my local Virginia jurisdiction does in a day.
5) The final step in getting a warrant.
6) Looks like Orin is on his way to being unfireable. Congratulations!
7) Watching a client make bad choices: the Defense attorney experience.
8) Worries that placing public records online (thus making them truly public) may lead to an increase in identity theft.
9) Reactions to the Peterson verdict (read the comments).
10) Police work and the joy of anonymous excrement.
11) Violation of the Constitution as a sinful act. Surely mortal rather than venial.
2) In case you didn't know, your body creates alcohol all by itself. I knew it because it of a class on Alcohol and Society I took once upon a time.
3) Having your property stolen by federal marshals. Greeeeaaat.
4) The federal criminal courts are overworked? The courthouse here in Richmond has the feel of a funeral home it's so dead. I'm not sure it handles as many people in a week as my local Virginia jurisdiction does in a day.
5) The final step in getting a warrant.
6) Looks like Orin is on his way to being unfireable. Congratulations!
7) Watching a client make bad choices: the Defense attorney experience.
8) Worries that placing public records online (thus making them truly public) may lead to an increase in identity theft.
9) Reactions to the Peterson verdict (read the comments).
10) Police work and the joy of anonymous excrement.
11) Violation of the Constitution as a sinful act. Surely mortal rather than venial.
Questions From Abroad
From the other side of the pond Lewis Maskell asks 3 questions:
There's nothing spectacularly different in this case than any number of others. I'd like to attribute it to 24 hour news networks and Court TV needing something to show but that's only a partial explanation. Court TV has news from all sorts of trials each week and very few take off like this. What I think sparked it all was the time when the victims were "missing." Everything that could be done by a couple upper class families and the police to publicize the search was being done (let's not kid ourselves, if this family didn't have money it probably would have gotten a little local coverage - if that). So we had all sorts of interest built and then all the stuff about Scott Peterson started coming out and everybody was getting sucked in more. Then a couple big name attorneys swept in and the soap opera was on in full force. It just kept feeding upon itself from that point.
Thankfully, our legislators are willing, and able, to step into the breach with all sorts of laws establishing less important but far more common violations. Among these are drug laws which guarantee that any enterprising officer who really wants to can fill up his entire day stopping cars which have air fresheners or Saint Christopher medals hanging from the rear view mirror (or some other bogus, minor violation) so that he can check ID, issue a warning, give back the driver's license, and then proceed with the real purpose of the stop:
The various task forces are filled with those who have shown the drive and ability to succeed at drug interdiction. These people are then tasked with succeeding at an even greater level. Their careers depend upon it. They don't come in with massive marijuana destructions during harvesting season and everybody knows they have failed. They don't interdict the drugs everyone knows travel down the interstate and it doesn't bode well for their careers. Thus the massive interdictions and crop destructions.
The problem is that it just doesn't work. No matter how many times and how hard these officers work their rears off to plug the dike it does no good. For every hole they plug 3 more open and the water is flowing over the top as well. They really have no chance. Most of these officers are dedicated and work extremely hard (I doubt many are craven enough to merely be ladder climbers); however, they are so badly outnumbered it's hard to see any real difference which comes from their effort.
So, no I don't feel as though it is the police patting themselves on the back. I feel more like it is the police being tasked with an impossible duty and taking some pride on those occasions when they do accomplish enough to be noted.
Actually, if I had a little better lighting you'd see that the first section is in a maroon sweater, the next in a jacket over it, and the third in a yellow sweatshirt from my college. This reflects the fact that the first two were filmed on the first day and the last section was done on Thursday when the courts were closed and I could come into my office in comfortable clothes. You'll note I said comfortable, not casual. One of the perks of being your own boss is not having to answer to anyone if I come into the office dressed like a slob.
What is it about the Scott Petersen case? I mean, it doesn't seem particularly special. All of America seems fazed by it. There is just something about all the trial-watching that this Brit just does not get.Join the club.
There's nothing spectacularly different in this case than any number of others. I'd like to attribute it to 24 hour news networks and Court TV needing something to show but that's only a partial explanation. Court TV has news from all sorts of trials each week and very few take off like this. What I think sparked it all was the time when the victims were "missing." Everything that could be done by a couple upper class families and the police to publicize the search was being done (let's not kid ourselves, if this family didn't have money it probably would have gotten a little local coverage - if that). So we had all sorts of interest built and then all the stuff about Scott Peterson started coming out and everybody was getting sucked in more. Then a couple big name attorneys swept in and the soap opera was on in full force. It just kept feeding upon itself from that point.
Don't you ever get the feeling that a round-up of marijuana seizures (or other drug seizures for that matter) is really just the authorities patting themselves on the back?It's not quite that simple. The primary purpose of any police force is to keep the peace. It is the force which keeps every other block from being run by whatever gang is prominent. It stops "real" crimes such as murder, rape, or robbery. It deters future crimes by apprehending those who have committed them previously and by "showing the flag." However, this all requires officers to cover a large enough area and respond to emergencies in sufficient numbers. Thus, for a substantial portion of the time the officers are not going to have anything to do.
Thankfully, our legislators are willing, and able, to step into the breach with all sorts of laws establishing less important but far more common violations. Among these are drug laws which guarantee that any enterprising officer who really wants to can fill up his entire day stopping cars which have air fresheners or Saint Christopher medals hanging from the rear view mirror (or some other bogus, minor violation) so that he can check ID, issue a warning, give back the driver's license, and then proceed with the real purpose of the stop:
Officer: "You don't have anything dangerous or illegal in the car like a gun or drugs?"A couple lucky stops and suddenly you're a big guy on the force. Unlike homicides or robberies (where the police are most often in reactive mode), drug enforcement is where an officer can be proactive and show he's a hard charger. Maybe he can get a promotion or get tagged to work on some task force.
Driver: "No sir." (What else is he going to say?)
Officer: "Then you wouldn't mind if I searched your vehicle?"
The various task forces are filled with those who have shown the drive and ability to succeed at drug interdiction. These people are then tasked with succeeding at an even greater level. Their careers depend upon it. They don't come in with massive marijuana destructions during harvesting season and everybody knows they have failed. They don't interdict the drugs everyone knows travel down the interstate and it doesn't bode well for their careers. Thus the massive interdictions and crop destructions.
The problem is that it just doesn't work. No matter how many times and how hard these officers work their rears off to plug the dike it does no good. For every hole they plug 3 more open and the water is flowing over the top as well. They really have no chance. Most of these officers are dedicated and work extremely hard (I doubt many are craven enough to merely be ladder climbers); however, they are so badly outnumbered it's hard to see any real difference which comes from their effort.
So, no I don't feel as though it is the police patting themselves on the back. I feel more like it is the police being tasked with an impossible duty and taking some pride on those occasions when they do accomplish enough to be noted.
And was there any particular reason why you switched to wearing the orange top half-way through? I kept wondering if there was some particular point, or whether it was simply because you got cold.
Actually, if I had a little better lighting you'd see that the first section is in a maroon sweater, the next in a jacket over it, and the third in a yellow sweatshirt from my college. This reflects the fact that the first two were filmed on the first day and the last section was done on Thursday when the courts were closed and I could come into my office in comfortable clothes. You'll note I said comfortable, not casual. One of the perks of being your own boss is not having to answer to anyone if I come into the office dressed like a slob.
13 November 2004
Recruitment?
YouCanBeACop.com
While I apreciate the offer, I wish ya'll would stopping spamming me with it (4 times in the last week).
While I apreciate the offer, I wish ya'll would stopping spamming me with it (4 times in the last week).
12 November 2004
The latest VideoBlog Entry
Hope you enjoy it.
Technical Matters: My new Sony DVR recorder works wonderfully. Writing to the DVD in VR format and transplanting it to the hard drive worked well. Using the program which came with the camera I was able to convert the file to mpeg2 and the resulting file was beautiful. The only problem was that the conversions were far too big; they took about 40% of the screen. When I tried to use them in Movie Maker they kept causing it to freeze up. However, with persistence I got it put together. Then I tried to finalize the movie and it froze the computer up. I restarted the computer, turned off all the background programs I could, and tried again. It froze again.
So then I had to go and use a conversion program I have to change it to a smaller size. This messed up the syncronization of the picture and sound. However, it did make it small enough that I was able to put it together.
If anyone has a really top of the line conversion program (that won't cost me a month's income) I'm open to suggestions.
Scott Peterson Verdict
After two jurors were thrown off the jury a verdict has been reached in the Scott Peterson trial.
It will be announced at 1 p.m. Pacific (4 p.m. Eastern). I really, really, really want to know the real reason those jurors were removed.
GUILTY 1st Degree - Laci Peterson Homicide
GUILTY 2d Degree - Child
We should all be a little ashamed of how the crowd outside the courthouse acted: mugging for the cameras and celebrating. Two persons are dead and the jury may vote to kill another. No joy should be found in this even if it is a just result.
The removal of two jurors bothers me. Two jurors gone in two days and the ~ !! BINGO !! ~ a guilty verdict. It's just too suspicious.
The appellate brief in this case is going to be thicker than The Decline and Fall of the Roman Empire.
It will be announced at 1 p.m. Pacific (4 p.m. Eastern). I really, really, really want to know the real reason those jurors were removed.
GUILTY 1st Degree - Laci Peterson Homicide
GUILTY 2d Degree - Child
We should all be a little ashamed of how the crowd outside the courthouse acted: mugging for the cameras and celebrating. Two persons are dead and the jury may vote to kill another. No joy should be found in this even if it is a just result.
The removal of two jurors bothers me. Two jurors gone in two days and the ~ !! BINGO !! ~ a guilty verdict. It's just too suspicious.
The appellate brief in this case is going to be thicker than The Decline and Fall of the Roman Empire.
Later Today
Later today I will be uploading the latest video blog entry which will:
Ask very important questions about Harvard.
Talk about the fact that a salesman usually won't trade tires for marijuana.
Go over the latest marijuana seizures.
And . . .
Compare the NAACP and the Federalist Society.
Ask very important questions about Harvard.
Talk about the fact that a salesman usually won't trade tires for marijuana.
Go over the latest marijuana seizures.
And . . .
Compare the NAACP and the Federalist Society.
11 November 2004
What Will the Investigative Documents Show?
Earl Washington's attorneys (with the help of several news agencies) have menaged to get several documents pried free from the hands on the Commonwealth.
Will they show misconduct or just raise more questions? DNA cleared the man already so what is the Commonwealth fighting so hard to hide?
Will they show misconduct or just raise more questions? DNA cleared the man already so what is the Commonwealth fighting so hard to hide?
Imagine This
A conversation the night before you (an attorney) go to court:
"Pop, watch the dog for me for the next couple days. I'm taking my toothbrush with me because the judge is going to find some reason to find me in contempt and throw me in jail tomorrow.Lv Skelly
. . . .
No, Pop, I don't know what reason. I just know he's going to do it."
10 November 2004
Always Knew I was on the Side of the Angels
The question is whether that's good enough to get me into Heaven or whether I'll have to spend a few thousand years in Purgatory working off the other 38%.
The Most Important Story of the Day
Sesame Street is 35 years old today.
Of course, when I was watching the Street Mr. Looper was still tending shop and it was in the pre-Evil Elmo days. My favorite characters were/are Grover and Oscar. I liked Big Bird when he was torturing Mr. Hooper but otherwise he was just a little too goody-goody.
LvFark (I can't believe I just did a post about Sesame Street - read it fast, it might be too embarrassing to leave up long)
Around the Web
1) I'd have never thought to call this a litigation strategy but I guess a client might see it that way.
2) Is that sarcasm I hear in Skelly's voice?
3) The theory of alternate punishment drug programs versus the reality.
4) Hey I'm not a jerk. Well, okay, maybe that's not what he meant but that's how I'm interpreting it.
5) No mens rea therefore no violent crime, therefore no deportation for driving drunk and hitting someone. You must at least know that there might be a use of an item to a purposefully violent end. LvCrimApp et SL&P.
6) I'm a PD is finding out that nobody drinks more than two beers before they drive.
7) Mr. DA continues the odyssey toward a warrant. How come I keep wanting to break into "I'm just a Bill . . .?
8) An interesting "evidentiary scale."
9) OMG!! Could you possibly shoot yourself more directly in the foot.
10) Can Catholics accept the Catechism and the death penalty in the United States?
11) Look, I know the judge was way out of bounds but this is not the way to try to get tried by a different federal judge.
2) Is that sarcasm I hear in Skelly's voice?
3) The theory of alternate punishment drug programs versus the reality.
4) Hey I'm not a jerk. Well, okay, maybe that's not what he meant but that's how I'm interpreting it.
5) No mens rea therefore no violent crime, therefore no deportation for driving drunk and hitting someone. You must at least know that there might be a use of an item to a purposefully violent end. LvCrimApp et SL&P.
6) I'm a PD is finding out that nobody drinks more than two beers before they drive.
7) Mr. DA continues the odyssey toward a warrant. How come I keep wanting to break into "I'm just a Bill . . .?
8) An interesting "evidentiary scale."
9) OMG!! Could you possibly shoot yourself more directly in the foot.
10) Can Catholics accept the Catechism and the death penalty in the United States?
11) Look, I know the judge was way out of bounds but this is not the way to try to get tried by a different federal judge.
Another Peterson Juror Gone
Court TV is reporting that another juror (a lawyer no less) has been removed by the judge.
The new juror has sat on a criminal jury which found a defendant not guilty.
Yeesh! There must be some tuly interesting things going on behind closed doors. If there is a finding of guilt the appeal is going to be 300 pages long. Removing two jurors on subsequent days? If a conviction occurs it will look a lot like a shaped verdict.
On the other hand, everyone on Court TV seems to be of the opinion that the jury now has at least a sizeable minority for acquital.
The new juror has sat on a criminal jury which found a defendant not guilty.
Yeesh! There must be some tuly interesting things going on behind closed doors. If there is a finding of guilt the appeal is going to be 300 pages long. Removing two jurors on subsequent days? If a conviction occurs it will look a lot like a shaped verdict.
On the other hand, everyone on Court TV seems to be of the opinion that the jury now has at least a sizeable minority for acquital.
09 November 2004
Peterson Trial Has a New Juror
Juror number 7 has been replaced in the Scott Peterson case.
Court TV is reporting that this is the woman who in voir dire said that she was a "crusader" who would not be moved from a position once she had decided. However, the consensus seems to be that the juror did something improper.
Alternate #1 is thought to be sympathetic to the Defense.
Court TV is reporting that this is the woman who in voir dire said that she was a "crusader" who would not be moved from a position once she had decided. However, the consensus seems to be that the juror did something improper.
Alternate #1 is thought to be sympathetic to the Defense.
Something's Going on in the Scott Peterson Case
Court TV is reporting that the judge gave everybody two hours to get interested parties to the courtroom. Family members from both side have gathered.
They are speculating that there may have been juror misconduct leading to a mistrial or perhaps a verdict.
They are speculating that there may have been juror misconduct leading to a mistrial or perhaps a verdict.
I Wanna Go Here
Sure, I get visits to this site from Harvard, U Chicago, BU, etc on a pretty much a daily basis but the one which has caught my eye is Sierra Nevada College. Somebody from that school reads this blog at least once a day and I've got one question: Are they starting a law school and do they need professors? How 'bout an adjunct professor in history? I'm sure you need someone to teach the ever-needed Southern History course. Right? Actually my undergrad degrees were in International Studies and Comparative Religion. I could teach "Comparative Religion: Blue States versus Red - Which Pleases the European Union the Most?" How about it?
SunTrust Scam
I open my email and see this:
Now, being a little technologically competent and a criminal defense attorney I know this is a scam. I click thru and get to this WARNING - DO NOT ENTER ANY INFORMATION INTO THE LINKED PAGE - EXPECT ANY INFORMATION ENTERED TO BE STOLEN AND USED AGAINST YOU!
I'm not dumb enough to put any info in but I realize that in order to target this toward me someone likely has my email address and knows I bank at SunTrust. So I print the email and take down the address of the link. Then I take it across the street to my bank. The bank's reaction? I get told not to enter any information in any emails I get from someone claiming to be a bank. DUH. After I fuss a little the lady grudgingly takes the papers from me and sets them next to her on the desk. I'm pretty sure they hit the trash after I left.
AAaaarrrggggg!!!!
Now, being a little technologically competent and a criminal defense attorney I know this is a scam. I click thru and get to this WARNING - DO NOT ENTER ANY INFORMATION INTO THE LINKED PAGE - EXPECT ANY INFORMATION ENTERED TO BE STOLEN AND USED AGAINST YOU!
I'm not dumb enough to put any info in but I realize that in order to target this toward me someone likely has my email address and knows I bank at SunTrust. So I print the email and take down the address of the link. Then I take it across the street to my bank. The bank's reaction? I get told not to enter any information in any emails I get from someone claiming to be a bank. DUH. After I fuss a little the lady grudgingly takes the papers from me and sets them next to her on the desk. I'm pretty sure they hit the trash after I left.
AAaaarrrggggg!!!!
Federalist Society National Convention
Thursday starts the Federalist Society convention. Sadly, I shan't be in attendence as there are these people (judges) who just have an unreasonable expectation that I will be in court to represent my clients. Not sure why, but they have the power to throw me in jail so I must remain hereabouts.
The one part of the convention that pertains to this blog is on the first day:
Anyone? Anyone?
The one part of the convention that pertains to this blog is on the first day:
Criminal Law: The PATRIOT Act: A Three-Year RetrospectiveIf anybody feels like being my roving reporter and send a blow-by-blow I'd really like to cover what is said.
Hon. Viet D. Dinh, Professor of Law, Georgetown University Law Center and Former Assistant Attorney General, Office of Legal Policy, U.S. Department of Justice
Mr. Timothy Lynch, Director, Project on Criminal Justice, Cato Institute
Prof. Nadine Strossen, President, American Civil Liberties Union and New York Law School
Hon. Christopher A. Wray, Assistant Attorney General, Criminal Division, U.S. Department of Justice
Judge Samuel A. Alito Jr., U.S. Court of Appeals, Third Circuit (Moderator)
Anyone? Anyone?
Centre is #1
Centre College (my undergrad) is known for its small & close-knit community, difficult classes, real grades, and graduating only 75% of each class. That's why I chose to go there. Unlike many who get into schools which work under the (US News encouraged) principle that if you are good enough to get into [fill in so-called elite institution] you are good enough to graduate, I know I earned my grades and my degree.
Centre has a reputation for alumni loyalty. For years and years it was known for having the #1 percentage of alumni donations. Then a sad day came and we faded into second or third for reasons best left unaired for a few years. Now we're back on top and the alumni relations office is making sure we all know it (look carefully at the yellow). That's pretty cool.
The Attack on Lawyers
This article has a discussion on the modern trend of attacking lawyers. As the article points out by quoting Shakespeare, lawyers have never been a popular profession. However, I can trace it even farther back to the 13th century with a quote about St. Ives: "Sanctus Ivo erat Brito, Advocatus et non latro, Res miranda populo."
The article goes on about how it is a new tactic which "ha[s] not been advanced by the pitchfork crowd, but by highly educated and sophisticated politicos, many of whom are also members of the bar — people who are supposed to know better." Leaving aside the disturbingly elitist tone of that assertion, I do not believe it to be true. My point of view is closer to the local level but I can clearly see the effects that representation has had on attorneys.
I first noticed this when I was clerking for a firm in Kentucky. In Kentucky politics is a full-contact, blood sport. The particular race was for a seat which had been Democratic forever, in a Democratic area and the Democrats could have nominated a drone and he'd have won easily. They didn't. They nominated a guy who everyone thought was gay (although it was never said out loud, in public). Bumperstickers popped up urging people to "Vote Straight Republican." Still the Democratic candidate had a slight lead. Then, two days before the election an ad popped up. The ad laid out in graphic detail a rape which had occurred years before; at my high school no less - which meant there were racial undertones (with about a 50-50 breakdown we grew up with one another and had no racial problems but the rest of the world just didn't seem to get that). Then the ad pointed out that the Democratic candidate had represented the person who was found guilty of doing this in the trial court. Then it pointed out that the Democratic candidate had represented the person found guilty of doing this in the court of appeals. Then it pointed out that the Democratic candidate had represented the man found guilty of doing this in the supreme court. In case you haven't guessed, the Democratic candidate was a public defender assigned to represent this defendant. Still, the ad was devastating and led to a Republican victory. And yes, it was aimed at "pitchfork crowd" but it didn't come from them.
Now that I'm in Virginia I see it at work here. It's more subtle but it's present. Why has the General Assembly (not the "pitchfork crowd") refused to adequately fund indigent defense for many long years? Because we defend "those people." Seen anybody make it into office who has had any kind of recent experience doing criminal defense work? Most importantly, have you seen a lawyer who made his living doing criminal defense make it to a bench in Virginia or the 4th Circuit? Maybe a trial judge every so often but most positions which are taken by those who've practiced criminal law are reserved for prosecutors.
I realize the article is mostly about civil representations and national positions but this is just not a new phenomenon.
Thanks to anonymous who tells me this came from NRO.
The article goes on about how it is a new tactic which "ha[s] not been advanced by the pitchfork crowd, but by highly educated and sophisticated politicos, many of whom are also members of the bar — people who are supposed to know better." Leaving aside the disturbingly elitist tone of that assertion, I do not believe it to be true. My point of view is closer to the local level but I can clearly see the effects that representation has had on attorneys.
I first noticed this when I was clerking for a firm in Kentucky. In Kentucky politics is a full-contact, blood sport. The particular race was for a seat which had been Democratic forever, in a Democratic area and the Democrats could have nominated a drone and he'd have won easily. They didn't. They nominated a guy who everyone thought was gay (although it was never said out loud, in public). Bumperstickers popped up urging people to "Vote Straight Republican." Still the Democratic candidate had a slight lead. Then, two days before the election an ad popped up. The ad laid out in graphic detail a rape which had occurred years before; at my high school no less - which meant there were racial undertones (with about a 50-50 breakdown we grew up with one another and had no racial problems but the rest of the world just didn't seem to get that). Then the ad pointed out that the Democratic candidate had represented the person who was found guilty of doing this in the trial court. Then it pointed out that the Democratic candidate had represented the person found guilty of doing this in the court of appeals. Then it pointed out that the Democratic candidate had represented the man found guilty of doing this in the supreme court. In case you haven't guessed, the Democratic candidate was a public defender assigned to represent this defendant. Still, the ad was devastating and led to a Republican victory. And yes, it was aimed at "pitchfork crowd" but it didn't come from them.
Now that I'm in Virginia I see it at work here. It's more subtle but it's present. Why has the General Assembly (not the "pitchfork crowd") refused to adequately fund indigent defense for many long years? Because we defend "those people." Seen anybody make it into office who has had any kind of recent experience doing criminal defense work? Most importantly, have you seen a lawyer who made his living doing criminal defense make it to a bench in Virginia or the 4th Circuit? Maybe a trial judge every so often but most positions which are taken by those who've practiced criminal law are reserved for prosecutors.
I realize the article is mostly about civil representations and national positions but this is just not a new phenomenon.
Thanks to anonymous who tells me this came from NRO.
08 November 2004
Qualities of a Supreme Court Justice
Southern Appeal has a short post about the possibility of Justice Thomas being elevated to Chief Justice. The short discussion afterward centers on whether Justice Thomas would be willing to go thru all the garbage which would surely be ramped up again for another confirmation hearing. Of course there is also the proclaimed wish of many who would like to see Justice Scalia move to the front of the class. Southern Appeal is better suited to discuss the politics of such an appointment so I will leave it to Feddie et al.
What I'm interested in discussing is the qualities, as a defense attorney, I would prefer to see in a supreme court nominee. To do this I will engage in some enlightened self interest.
Those who work as a criminal defense lawyers usually come to believe that almost every judge is a judicial activist when it comes to upholding the conviction of a "criminal" or defending the processes of the criminal justice system. Perhaps uniquely, in criminal law judges of all persuasions seem willing to bend the rules and stretch the constitution in order to keep convictions from being overturned. Most prominently, this is found in the shambles that is 4th Amendment search and seizure jurisprudence - where it has been found that a search using a dog isn't really a search, and that if you search a car after someone who was shortly thereafter arrested / detained it is constitutional because the arrestee might be able to have a weapon in the car close enough to use or evidence in the car close enough to destroy (as if any competent officer is not going to secure the arrestee first), and that judges aren't capable of seeing the difference between a purposeful violation of rights thru a pretext stop and a real stop (to which I still say: if a judge cannot do it then convene a jury).
"Pragmatists", whether they are from the left (Breyer's absolute devotion to the clearly problematic sentencing guidelines) or the right (Rehnquist ruling that citizens can be forced to identify themselves to an officer), are the bane of those charged with a crime. How many times do we stand outside of a courtroom talking to our clients trying to explain that "Yes, I think the dog walking around your bag is bogus and a clear violation of your right 'to be secure in [your] effects . . . against unreazonable searches and seizuires.' Unfortunately, the federal supreme court has opined in dicta that dogs are these magical creatures who - despite the fact that their use reveals things which would never have been revealed by normal human senses - do not perform a search. Now, I know that's not logical but the supreme court thinks that dogs are beasts with these magical properties and therefore the trial judge and every appellate judge thinks they are enchanted, non-search beasts. So no search took place. Understand?" Pragmatists scare the bejeezuz out of me. Their primary rationale tends to boil down to "If you aren't the person the government is looking for you don't have anything to worry about because this won't effect you." The assumption here is that the government would only go after "actual" criminals; the fact that we are all prety much constantly in violation of some law seems to escape these people (who are too high on the social ladder to be effected by that fact).
(1) So I am coming out in favor of putting another textualist on the court. By this I mean that a new justice should adhere to the idea that a statute or constitutional section means what it says and says what it means. (2) He should understand that stare decisis is important in criminal law because it is an area of the law where the objective is for the law to penetrate the consciousness of the people; changing the law often or complicating it through exception after exception leaves a large portion of the populace without an understanding of the law. Let's face it, most people do not have the tools or time to keep up with the actual status of the law; it sinks in when they hear what happened to Uncle Joe and/or Bob' wife. (3) He should also realize that people tend to think the constitution actually means something and should not be afraid to get rid of bad precedent which clearly contradicts it (dog non-searches, post arrest "possible threat" car searches, the guidelines are constitutional, etc.) (4) He should be dedicated to leaving those decisions in place which enforce the constitution, particularly Miranda and the exclusionary rule. While these are neither demanded nor denied by the constitution they do provide incentives for the government to obey the constitution. Most of the other offered options are jokes although there is one possible option which could work besides exclusion (see last 4 paragraphs here). (5) He must apply the Rule of Leniency. While a universal principle, in Virginia it is explained with this oft quoted, oft ignored proposition: "When there is ambiguity in a statute the statute must be construed strictly against the Commonwealth." Usually this boilerplate is followed with an explanation as to how something found in an obscure passage in the insurance statutes explains what the General Assembly meant to say in this criminal statute (and no explanation as to how the rule was circumvented). This is one of the oldest, most cherished protections of liberty; a justice must be willing to enforce it.
Finally, I would like to see someone who has actual experience in criminal law elevated to the supreme court. And I don't mean as a judge, a member of some task force, a professor of criminal law dabbling a little on the side, or a federal prosecutor. I mean someone who has had extensive experience in the trenches, trying case after case in a State court where there is little insulation from the people effected by the trial (whether complaining witness or defendant). Where crushing caseloads make you realize what is important and what is not so that you can better value a case. The best of the best would probably be a defense attorney who worked in law enforcement prior to joining the bar; this would be a person who actually understands the practical realities of criminal law.
Those are my first thoughts as to the qualities I'd like to see in a supreme court justice. What do ya'll think?
What I'm interested in discussing is the qualities, as a defense attorney, I would prefer to see in a supreme court nominee. To do this I will engage in some enlightened self interest.
Those who work as a criminal defense lawyers usually come to believe that almost every judge is a judicial activist when it comes to upholding the conviction of a "criminal" or defending the processes of the criminal justice system. Perhaps uniquely, in criminal law judges of all persuasions seem willing to bend the rules and stretch the constitution in order to keep convictions from being overturned. Most prominently, this is found in the shambles that is 4th Amendment search and seizure jurisprudence - where it has been found that a search using a dog isn't really a search, and that if you search a car after someone who was shortly thereafter arrested / detained it is constitutional because the arrestee might be able to have a weapon in the car close enough to use or evidence in the car close enough to destroy (as if any competent officer is not going to secure the arrestee first), and that judges aren't capable of seeing the difference between a purposeful violation of rights thru a pretext stop and a real stop (to which I still say: if a judge cannot do it then convene a jury).
"Pragmatists", whether they are from the left (Breyer's absolute devotion to the clearly problematic sentencing guidelines) or the right (Rehnquist ruling that citizens can be forced to identify themselves to an officer), are the bane of those charged with a crime. How many times do we stand outside of a courtroom talking to our clients trying to explain that "Yes, I think the dog walking around your bag is bogus and a clear violation of your right 'to be secure in [your] effects . . . against unreazonable searches and seizuires.' Unfortunately, the federal supreme court has opined in dicta that dogs are these magical creatures who - despite the fact that their use reveals things which would never have been revealed by normal human senses - do not perform a search. Now, I know that's not logical but the supreme court thinks that dogs are beasts with these magical properties and therefore the trial judge and every appellate judge thinks they are enchanted, non-search beasts. So no search took place. Understand?" Pragmatists scare the bejeezuz out of me. Their primary rationale tends to boil down to "If you aren't the person the government is looking for you don't have anything to worry about because this won't effect you." The assumption here is that the government would only go after "actual" criminals; the fact that we are all prety much constantly in violation of some law seems to escape these people (who are too high on the social ladder to be effected by that fact).
(1) So I am coming out in favor of putting another textualist on the court. By this I mean that a new justice should adhere to the idea that a statute or constitutional section means what it says and says what it means. (2) He should understand that stare decisis is important in criminal law because it is an area of the law where the objective is for the law to penetrate the consciousness of the people; changing the law often or complicating it through exception after exception leaves a large portion of the populace without an understanding of the law. Let's face it, most people do not have the tools or time to keep up with the actual status of the law; it sinks in when they hear what happened to Uncle Joe and/or Bob' wife. (3) He should also realize that people tend to think the constitution actually means something and should not be afraid to get rid of bad precedent which clearly contradicts it (dog non-searches, post arrest "possible threat" car searches, the guidelines are constitutional, etc.) (4) He should be dedicated to leaving those decisions in place which enforce the constitution, particularly Miranda and the exclusionary rule. While these are neither demanded nor denied by the constitution they do provide incentives for the government to obey the constitution. Most of the other offered options are jokes although there is one possible option which could work besides exclusion (see last 4 paragraphs here). (5) He must apply the Rule of Leniency. While a universal principle, in Virginia it is explained with this oft quoted, oft ignored proposition: "When there is ambiguity in a statute the statute must be construed strictly against the Commonwealth." Usually this boilerplate is followed with an explanation as to how something found in an obscure passage in the insurance statutes explains what the General Assembly meant to say in this criminal statute (and no explanation as to how the rule was circumvented). This is one of the oldest, most cherished protections of liberty; a justice must be willing to enforce it.
Finally, I would like to see someone who has actual experience in criminal law elevated to the supreme court. And I don't mean as a judge, a member of some task force, a professor of criminal law dabbling a little on the side, or a federal prosecutor. I mean someone who has had extensive experience in the trenches, trying case after case in a State court where there is little insulation from the people effected by the trial (whether complaining witness or defendant). Where crushing caseloads make you realize what is important and what is not so that you can better value a case. The best of the best would probably be a defense attorney who worked in law enforcement prior to joining the bar; this would be a person who actually understands the practical realities of criminal law.
Those are my first thoughts as to the qualities I'd like to see in a supreme court justice. What do ya'll think?
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