Jury selection in Connecticut is unique. We speak to each potential juror outside the presence of all other potential jurors. Thus, it sometimes takes longer to pick the jury than it does to try a case. There's plenty of time to experiment in such a voir dire: If you try something that does not work, simple excuse the juror and move on.
I've just finished four days of jury selection in a criminal case. Toward the end of the process, I tried something new. I think it works. I will pass it along here for whatever it is worth.
Bedrock constitutional law holds that a defendant is presumed innocent. It is the state's burden to prove guilt, and this guilt must be proven beyond a reasonable doubt. A defendant has a right not to testify, and jurors cannot hold a decision not to testify against the accused. Simple building blocks, really.
But they avoid a larger issue. Guilt is a loaded concept. A person can be innocent of the crime charged while guilty of all sorts of other things. Guilt is, after all, ubiquitous: ask Woody Allen. How do we keep the sense of residual guilt lingering not so far beneath the surface of anyone with a conscience from spilling over the lip of the state's cup and tainting a defendant?
Criminal court is a frightening place. It is not joy that brings a group of jurors together. A life has usually been torn, or even destroyed. The sense of order on which we all depend has been shattered. Jurors are called upon to determine what shall become of a person. What brings a group of folks to trial is usually a troubling event. That event may or may not reflect the commission of a crime.
"What do you think of when you hear the word guilty?" I asked that of several jurors the other day.
"That someone did something wrong," was a common response.
"What sort of thing did they do wrong?" This yields an odd, even disconcerting, response. Christians say all have sinned and fallen short of the glory of God. But we are not talking about sin here.
"Do you understand that the term guilt has a religious and moral context that is altogether different from what we talk about in a criminal court? Here a person is guilty of a crime only if the state can prove the person acted in such a way as to prove the elements of the crime charged?"
A juror will listen, attentively, wondering where you are heading.
"Are you open to the possibility that the state's case may fail but that you may still be troubled by the allegations against my client?"
One potential juror was confused.
"What I am trying to say, sir, is that term guilty has different uses. A person can be morally guilty while having committed no crime at all."
The venireperson seemed startled by this. So I forged an example.
"You have heard of the seven deadly sins?"
"Yes."
"And you would agree these are moral failings calling forth a sense of guilt?"
"Yes."
"Let's consider gluttony, one of the sins. A person could be guilty of that sin without his conduct ever satisfying the elements of any known crime. Does that make sense?"
The juror agreed. And I felt in this case that I had received permission to explore murky terrain without worrying that a gratuitous sense of guilt would somehow smear my client.
This is risky voir dire. It invites a jury to think less of a man or woman they have never met. It is not the sort of voir dire, I suspect, you would want to use in every case.
But in those cases where the uncontested facts are unsettling it may well be helpful to defang the concept of guilt. A criminal courtroom is not a forum for a moralists. It is a place to test the allegations of the state. It would be a far better thing to excise the term guilt and banish it from the room. The state either satisfies its burden of proving a crime or it does not. In the meantime, we are all guilty, of something, somewhere, sometime. Ask Woody Allen.
Tuesday, March 31, 2009
Monday, March 30, 2009
Mental Health and the Law: It's a Civil Issue, Too
Most lawyers I know struggle with the mental health needs of at least some of their clients. We are not trained for this work, and generally make a mess of it. Yet new rules of professional conduct place a premium on client communication. Just how many tirades drenched in hatred, rage and paranoia are we supposed to endure?
There are great fictions at work in the law. Perhaps the grandest of all is that of the reasonable person. The background assumption lurking beneath the surface of the common law is the notion that we are a community of reasonable minds. Folks bargaining in the law's shadows will reach the same conclusions, or, at the very least, will differ about conclusions along lines that all can identify and accept as rational.
But we are far from rational. Rage lurks in the shadows. So does anger, blind self-centeredness, paranoia and a host of other ghouls that may not rise to the level of out-and-out insanity, but which do cloud the horizon. Cracking the sociopath's code, now that would be an accomplishment worthy of note. Imagine how much simpler life would be if we could turn away rage with a kind word, or, in the alternative, know how to discern an anger which is appropriate to its place and circumstance from the infantile rage that bends everything toward itself, like a sinkhole?
I've been looking for a good book on character disorders in the civil litigation system. Thus far, I have not found anything. A week or so ago, I stumbled on a good survery of mental health issues in the criminal law. Crime, Punishment and Mental Illness: Law and the Behavioral Sciences in Conflict, by Patricia and Steven Erickson is part of the Critical Issues in Crime and Society series published by Rutgers University Press.
This book, published in 2008, does not really break new ground. Its value lies in the sketching out the terrain. In the criminal courts, voluntaristic assumptions about human behavior crash headlong into the emerging scientific understanding of the mind and its dysfunctions. The law cherishes its anachronistic commitment to punishment as a means of deterring those who choose to do wrong. Only those most severely ill are excused. But when a person is found not guilty by reason of insanity, they are warehoused nonetheless in an institution that has look and feel of a prison. Our grand experiment with deinstitutionalization of the mentally ill has failed; we're now inclined to imprison a deviant rather than treat him. So much is obvious.
Last week, Connecticut's Supreme Court handed down a decision that troubles me. (My firm took the appeal.) Our client killed his wife in a fit of rage. His trial lawyer had him evaluated and the doctor found the man to be unable to control himself. Simply put, he was a perfect storm waiting to break: poor treatment and bad illness yielded a horrible killing.
The jury rejected the mental disease and defect defense. In part, we argued, that was because the judge gave the jury a bad instruction. Only after the jury found that he had intended to kill his wife were they to consider whether he was unable to control his conduct. Didn't his doctor say he could not control himself? There was no state expert to contradict this claim.
The instructional issue was not properly preserved by trial counsel, so the Court did not squarely meet the issue. But it did telegraph how it might resolve the issue: When a person is cognitively ill, that is they cannot tell a person from a paper sack, mental illness may excuse a person. But mere volitional illness may not, the Court suggested. This would be a sad and tragic result. It is obvious to any litigator that many people simply cannot help themselves; our wills are not anywhere near so free as we pretend them to be.
The grand crimes of the criminal courts merely illustrate truths we refuse to face in the civil courtroom: What fuels a good deal of litigation is the high octane energy that flows from minds bent and twisted beyond reason. The failures we tolerate in the criminal justice system are replayed a thousand-fold in the civil system, driving up litigation costs, clogging dockets and wearying a court staff not trained to play intermittent therapist.
I wonder why the tort reformers of the world have not focused on this issue. And I wonder why there is a dearth of literature on character disorders and the civil justice system. Perhaps because we fail where mental illness is most obvious, we simply despair of the more nuanced tragedies that take place daily in the civil courts.
There are great fictions at work in the law. Perhaps the grandest of all is that of the reasonable person. The background assumption lurking beneath the surface of the common law is the notion that we are a community of reasonable minds. Folks bargaining in the law's shadows will reach the same conclusions, or, at the very least, will differ about conclusions along lines that all can identify and accept as rational.
But we are far from rational. Rage lurks in the shadows. So does anger, blind self-centeredness, paranoia and a host of other ghouls that may not rise to the level of out-and-out insanity, but which do cloud the horizon. Cracking the sociopath's code, now that would be an accomplishment worthy of note. Imagine how much simpler life would be if we could turn away rage with a kind word, or, in the alternative, know how to discern an anger which is appropriate to its place and circumstance from the infantile rage that bends everything toward itself, like a sinkhole?
I've been looking for a good book on character disorders in the civil litigation system. Thus far, I have not found anything. A week or so ago, I stumbled on a good survery of mental health issues in the criminal law. Crime, Punishment and Mental Illness: Law and the Behavioral Sciences in Conflict, by Patricia and Steven Erickson is part of the Critical Issues in Crime and Society series published by Rutgers University Press.
This book, published in 2008, does not really break new ground. Its value lies in the sketching out the terrain. In the criminal courts, voluntaristic assumptions about human behavior crash headlong into the emerging scientific understanding of the mind and its dysfunctions. The law cherishes its anachronistic commitment to punishment as a means of deterring those who choose to do wrong. Only those most severely ill are excused. But when a person is found not guilty by reason of insanity, they are warehoused nonetheless in an institution that has look and feel of a prison. Our grand experiment with deinstitutionalization of the mentally ill has failed; we're now inclined to imprison a deviant rather than treat him. So much is obvious.
Last week, Connecticut's Supreme Court handed down a decision that troubles me. (My firm took the appeal.) Our client killed his wife in a fit of rage. His trial lawyer had him evaluated and the doctor found the man to be unable to control himself. Simply put, he was a perfect storm waiting to break: poor treatment and bad illness yielded a horrible killing.
The jury rejected the mental disease and defect defense. In part, we argued, that was because the judge gave the jury a bad instruction. Only after the jury found that he had intended to kill his wife were they to consider whether he was unable to control his conduct. Didn't his doctor say he could not control himself? There was no state expert to contradict this claim.
The instructional issue was not properly preserved by trial counsel, so the Court did not squarely meet the issue. But it did telegraph how it might resolve the issue: When a person is cognitively ill, that is they cannot tell a person from a paper sack, mental illness may excuse a person. But mere volitional illness may not, the Court suggested. This would be a sad and tragic result. It is obvious to any litigator that many people simply cannot help themselves; our wills are not anywhere near so free as we pretend them to be.
The grand crimes of the criminal courts merely illustrate truths we refuse to face in the civil courtroom: What fuels a good deal of litigation is the high octane energy that flows from minds bent and twisted beyond reason. The failures we tolerate in the criminal justice system are replayed a thousand-fold in the civil system, driving up litigation costs, clogging dockets and wearying a court staff not trained to play intermittent therapist.
I wonder why the tort reformers of the world have not focused on this issue. And I wonder why there is a dearth of literature on character disorders and the civil justice system. Perhaps because we fail where mental illness is most obvious, we simply despair of the more nuanced tragedies that take place daily in the civil courts.
Sunday, March 29, 2009
The Mustard Seed
Spring flirted with New England yesterday, showing just enough sunshine and warmth to make me believe that winter may end. So, of course, my wife and I spent the afternoon in the garden. A week ago, we planted peas. Yesterday, we were preparing beds for other, less hardy plants. I was delighted that the fall's hard work yielded beds needing little work.
This morning, we sowed seeds for a variety of plants we start under lights in the house. We'll transplant those near Memorial Day, when the danger of all frost has passed. Beets, lettuce, squash in many forms, these and a variety of herbs have all been tucked into potting soil, several hundred plants in all. Tonight we will plant flowers. This summer we plan a new bed toward the front of the house.
Some of the herb seeds were so tiny I could scarely see them. "Just like a mustard seed," I thought. The reference is to the parable of the Mustard Seed. Here it is, as rendered in Mark's Gospel, chapter 4, verses 30-32.
"The kingdom of heaven is like unto a grain of mustard seed, which a man took, and sowed in his field: which indeed is less than all seeds; but when it is grown, it is greater than the herbs, and becometh a tree, so that the birds of the heaven come and lodge in the branches thereof."
In point of fact, mustard is a bush, not a tree, but, like a fig, it can grown wild and harbor birds on intertwining branches. We have several figs which each winter fight off the deer. They stand like rooted tumble weed, defying wind, rain and snow.
This parable seems transparent to me, at least in part. When Mark wrote, in the generation following that which witnesses Jesus' brief career, the end of time was still expected, this all the more because the Romans had just destroyed the Temple in Jerusalem after a three year siege. But I don't expect the world to end any time soon. I am with Kant on the question of time: I am not at all sure whether we are in time or whether time is in us.
While the world may not end, speaking of the Kingdom of God may still make powerful metaphorical sense. Is there not present in the world something that draws us from ourselves? Call it living water, if you will. Whatever the metaphor, it seems obvious that freedom consists of more than the absense of restraint.
I struggle with the figure of the historical Jesus. For decades, I scorned the very topic, scoffing at the need for meaning, and, paradoxically, finding a sort of meaning in acts of mere defiance. But that mustard seed, so small, bordering on the unseen, it can yield powerful and sustaining growth. This parable reminds us that the world is indeed a place of magic. From such small, seemingly insignificant things as a mustard seed comes the power to transform the world. Perhaps it is enough merely to stand back and let blossom what will.
This morning, we sowed seeds for a variety of plants we start under lights in the house. We'll transplant those near Memorial Day, when the danger of all frost has passed. Beets, lettuce, squash in many forms, these and a variety of herbs have all been tucked into potting soil, several hundred plants in all. Tonight we will plant flowers. This summer we plan a new bed toward the front of the house.
Some of the herb seeds were so tiny I could scarely see them. "Just like a mustard seed," I thought. The reference is to the parable of the Mustard Seed. Here it is, as rendered in Mark's Gospel, chapter 4, verses 30-32.
"The kingdom of heaven is like unto a grain of mustard seed, which a man took, and sowed in his field: which indeed is less than all seeds; but when it is grown, it is greater than the herbs, and becometh a tree, so that the birds of the heaven come and lodge in the branches thereof."
In point of fact, mustard is a bush, not a tree, but, like a fig, it can grown wild and harbor birds on intertwining branches. We have several figs which each winter fight off the deer. They stand like rooted tumble weed, defying wind, rain and snow.
This parable seems transparent to me, at least in part. When Mark wrote, in the generation following that which witnesses Jesus' brief career, the end of time was still expected, this all the more because the Romans had just destroyed the Temple in Jerusalem after a three year siege. But I don't expect the world to end any time soon. I am with Kant on the question of time: I am not at all sure whether we are in time or whether time is in us.
While the world may not end, speaking of the Kingdom of God may still make powerful metaphorical sense. Is there not present in the world something that draws us from ourselves? Call it living water, if you will. Whatever the metaphor, it seems obvious that freedom consists of more than the absense of restraint.
I struggle with the figure of the historical Jesus. For decades, I scorned the very topic, scoffing at the need for meaning, and, paradoxically, finding a sort of meaning in acts of mere defiance. But that mustard seed, so small, bordering on the unseen, it can yield powerful and sustaining growth. This parable reminds us that the world is indeed a place of magic. From such small, seemingly insignificant things as a mustard seed comes the power to transform the world. Perhaps it is enough merely to stand back and let blossom what will.
Friday, March 27, 2009
An Unusual Filing ...
State of Connecticut
v.
Clarence Willoughby
MOTION FOR ORDER REQUIRING STATE TO COOPERATE WITH FEDERAL AUTHORITIES TO PRODUCE WILLIAM WHITE AS A WITNESS AT TRIAL
The defendant in this case is a former homicide for the New Haven Police Department. He is accused of forging public documents as a means of absconding with funds designated for confidential informants in a series of investigations in New Haven. He has pleaded not guilty and elected a trial by jury.
At issue are payments made in four investigations: the Hill shooting spree, the Bennet murder, the Fields murder and the Rodriguez murder. Such documents and records regarding these payments as exist are a pivotal part of the State’s case. While there are no documents linking Mr. Willoughby to the Hill shooting spree, there are documents indicating he sought approval of CI payments to one source and received payments intended for that one source in the Bennet, Rodtrizuez and Fields murders. In each of these cases, former Lieutenant William White witnessed receipt of the cash funds by the defendant; in two of the cases, Mr. White approved the payments in advance.
Mr. White is a necessary witness in this trial. His role in the approval of contested payments and his presence at the time funds were disbursed are material factors in Mr. Willoughby’s defense. The defense intends to put on evidence that Mr. Willoughby feared for the life and physical safety of the informant who actually received these funds, Glenn Smith, because he was aware of allegations that Mr. White was corrupt. As a result, Mr. Willoughby sought to keep the identify of the informant from Mr. White.
Mr. While has since been convicted of crimes arising from his conduct as a New Haven police officer and is serving a federal sentence of imprisonment at the Morgantown Federal Correctional Institution. During the federal prosecution of Mr. White, the defense learned that Mr. White was the target of a federal investigation in which he was observed and recorded stealing money from a suspected drug dealer and expressing indifference about whether a confidential was killed as a result of the theft, the very sort of conduct which led Mr. Willoughby to take steps to protect the identity and life of his informant. Mr. Willoughby was aware that Mr. White engaged in conduct of this sort when he hid the identity of his informant.
Mr. White is beyond the subpoena power of the defendant. However, the undersigned’s office has been in touch with federal prison officials. We are assured that if the State of Connecticut makes a request for the production of this witness, arranges for his travel and assures him housing, the witness can be produced in a timely manner to testify in this case. State’s Attorney Michael Dearington is willing to make the request for the production of Mr. Willoughby. The defendant here requests that this Court order the state to make arrangements for the transportation and housing of Mr. White. (A draft of the necessary state writ is attached to this motion.)
WHEREFORE, the defendant requests that an order issuing the State of Connecticut to take the steps necessary to safely transport and house Mr. White for his testimony at trial issue. Mr. White’s presence is necessary to assure that the defendant receive a fair trial.
v.
Clarence Willoughby
MOTION FOR ORDER REQUIRING STATE TO COOPERATE WITH FEDERAL AUTHORITIES TO PRODUCE WILLIAM WHITE AS A WITNESS AT TRIAL
The defendant in this case is a former homicide for the New Haven Police Department. He is accused of forging public documents as a means of absconding with funds designated for confidential informants in a series of investigations in New Haven. He has pleaded not guilty and elected a trial by jury.
At issue are payments made in four investigations: the Hill shooting spree, the Bennet murder, the Fields murder and the Rodriguez murder. Such documents and records regarding these payments as exist are a pivotal part of the State’s case. While there are no documents linking Mr. Willoughby to the Hill shooting spree, there are documents indicating he sought approval of CI payments to one source and received payments intended for that one source in the Bennet, Rodtrizuez and Fields murders. In each of these cases, former Lieutenant William White witnessed receipt of the cash funds by the defendant; in two of the cases, Mr. White approved the payments in advance.
Mr. White is a necessary witness in this trial. His role in the approval of contested payments and his presence at the time funds were disbursed are material factors in Mr. Willoughby’s defense. The defense intends to put on evidence that Mr. Willoughby feared for the life and physical safety of the informant who actually received these funds, Glenn Smith, because he was aware of allegations that Mr. White was corrupt. As a result, Mr. Willoughby sought to keep the identify of the informant from Mr. White.
Mr. While has since been convicted of crimes arising from his conduct as a New Haven police officer and is serving a federal sentence of imprisonment at the Morgantown Federal Correctional Institution. During the federal prosecution of Mr. White, the defense learned that Mr. White was the target of a federal investigation in which he was observed and recorded stealing money from a suspected drug dealer and expressing indifference about whether a confidential was killed as a result of the theft, the very sort of conduct which led Mr. Willoughby to take steps to protect the identity and life of his informant. Mr. Willoughby was aware that Mr. White engaged in conduct of this sort when he hid the identity of his informant.
Mr. White is beyond the subpoena power of the defendant. However, the undersigned’s office has been in touch with federal prison officials. We are assured that if the State of Connecticut makes a request for the production of this witness, arranges for his travel and assures him housing, the witness can be produced in a timely manner to testify in this case. State’s Attorney Michael Dearington is willing to make the request for the production of Mr. Willoughby. The defendant here requests that this Court order the state to make arrangements for the transportation and housing of Mr. White. (A draft of the necessary state writ is attached to this motion.)
WHEREFORE, the defendant requests that an order issuing the State of Connecticut to take the steps necessary to safely transport and house Mr. White for his testimony at trial issue. Mr. White’s presence is necessary to assure that the defendant receive a fair trial.
Looking Forward To A Book Festival
My wife is a saint, and not just because she lives with me. When a wild hair sprouts and I just have to heed some distant drummer, she is gracious. Hence, she's given me leave to return to Wales late this spring for the annual Hay-on-Wye festival. Now that I think of it, maybe she is not a saint: perhaps she just wants me out of the country for eleven days to get some peace and quiet.
No matter what the cause, my travel plans are locked in. Soon, I'll be in a country in which sheep outnumber people by a ratio of about 4 to 1. This year, I'll be staying in a medieval castle and walking several miles into the village for the festivities each day.
What festivities? Hay-on-Wye is a book lover's paradise. It is an old market town hard on the border with England. Not much happened there for centuries; well, all right, make that millenia. In the 1960s, Richard Booth bought the crumbling castle in the town's center and decided to sell used books. His scouts scoured North America and books began to blow from West to East. Over time, the town adopted the printed word as its economic lifeline. There are now nearly 40 dealers selling books in the tiny town.
About a quarter century ago, another inspiration transformed the town. Why not an annual literary festival? And so it happens now each year. Authors, actors, entertainers, politicians come from around the world to give talks, performances and presentations in a tent city constructed not far from the center of town. It's a mob scene: nearly 100.000 people flock to the festival each year.
I attended the festival in 2007, and came home with a suitcase full of books, and shoes caked with mud from the everpresent rain. Events conspired to keep from returning last year. Not so this year.
I am not sure who is on the program this year. The list will not be published on line until APril 10. It is the equivalent of a college catalogue. There are so many lectures offered, the real challenge is ruling things out. There simply isn't time to take it all in.
Last night, I sat up late reading a guidebook to Southern Wales. I plan to feast not just on the written word, but to spend several days on day hikes. I still recall the sight of a wild mare in the Brecon Beacon park one windswept day. And I also plan to spend time checking out some old castles, and, finally visiting the site were the Holy Grail is said to be hidden still in the Snowdonian Mountains to the North.
Two members of our herd are griping about my departure, however. They cannot fathom why I would leave them behind. Odysseus and Penelope, the border collies that run our lives, are in revolt. All those sheep and I am not taking them? Just last summer, both dogs showed real promise with sheep when we worked them at different farms on the East Coast. I wish I could take them to Wales, but I suspect they would not want to return home.
Am I counting the days until I leave? Not really. Frankly, I am already there. Check out the festival on-line, and if you decide to go, look for me at the Mouse Castle. We'll share a pint somewhere close, or walk hills the Arthur himself may have traveled.
No matter what the cause, my travel plans are locked in. Soon, I'll be in a country in which sheep outnumber people by a ratio of about 4 to 1. This year, I'll be staying in a medieval castle and walking several miles into the village for the festivities each day.
What festivities? Hay-on-Wye is a book lover's paradise. It is an old market town hard on the border with England. Not much happened there for centuries; well, all right, make that millenia. In the 1960s, Richard Booth bought the crumbling castle in the town's center and decided to sell used books. His scouts scoured North America and books began to blow from West to East. Over time, the town adopted the printed word as its economic lifeline. There are now nearly 40 dealers selling books in the tiny town.
About a quarter century ago, another inspiration transformed the town. Why not an annual literary festival? And so it happens now each year. Authors, actors, entertainers, politicians come from around the world to give talks, performances and presentations in a tent city constructed not far from the center of town. It's a mob scene: nearly 100.000 people flock to the festival each year.
I attended the festival in 2007, and came home with a suitcase full of books, and shoes caked with mud from the everpresent rain. Events conspired to keep from returning last year. Not so this year.
I am not sure who is on the program this year. The list will not be published on line until APril 10. It is the equivalent of a college catalogue. There are so many lectures offered, the real challenge is ruling things out. There simply isn't time to take it all in.
Last night, I sat up late reading a guidebook to Southern Wales. I plan to feast not just on the written word, but to spend several days on day hikes. I still recall the sight of a wild mare in the Brecon Beacon park one windswept day. And I also plan to spend time checking out some old castles, and, finally visiting the site were the Holy Grail is said to be hidden still in the Snowdonian Mountains to the North.
Two members of our herd are griping about my departure, however. They cannot fathom why I would leave them behind. Odysseus and Penelope, the border collies that run our lives, are in revolt. All those sheep and I am not taking them? Just last summer, both dogs showed real promise with sheep when we worked them at different farms on the East Coast. I wish I could take them to Wales, but I suspect they would not want to return home.
Am I counting the days until I leave? Not really. Frankly, I am already there. Check out the festival on-line, and if you decide to go, look for me at the Mouse Castle. We'll share a pint somewhere close, or walk hills the Arthur himself may have traveled.
Thursday, March 26, 2009
A Modest Proposal For Connecticut's Crime Lab
It would not take much to assure that there were fair criminal trials supported by a truly neutral and independent crime laboratory in Connecticut. But I suspect most folks like the way things are and see little need for change. But none of those folks were responsible for producing the National Academy of Science's recent report on the use of science to investigate crimes.
Entitled Strengthening Forensic Science in the United States: A Path Forward, the 2009 report should be must reading for every judge in the state. Criminal defense lawyers will benefit from it, too: It is a storehouse of information about weaknesses in what we use as evidence. As to prosecutors, well, I suspect more than a few will wish the report were never written.
First, a pet peeve. There is no such thing as forensic science. There is simply the forensic use of science.
The scientific method, that revolutionary force that has set the world a whirring for the past 300 years, is simple: We observe the world, render hypotheses about how things are related. Patient observation and experimentation yield reliable theories on the nature of the physical world. Good science knows the strengths and weaknesses of its particular methods.
What, then, is called forensic science? That's simply a Latinate deceit. Science refers to what can be know. The fora is simply a courtroom. Forensic science is really no new and more reliable version of the core sciences. It is mere applied science. Methods used to investigate the natural world are used in the context of a legal proceeding. The next time you see a witness call himself a forensic scientist, slap him silly. There's no such thing.
Of course, the NAS doesn't go that far. No use stirring verbal hornet's nests when innocent men and women are going to prison based on evidence lawyers and judges, much less juries, do not comprehend. The NAS wants better applied science in the courtroom.
One of the report's more radical proposals is to sever the tie that binds many of the nation's forensic laboratories to law enforcement. There is a subtle bias, the report notes, when an investigator takes his check and his bearings from the needs of law enforcement. Science takes no sides. The truth sometimes convicts and it sometimes sets free.
In Connecticut, the state's forensic laboratory is housed within the same agency as the state police. While its employees profess a willingness to talk to any and all, it is hard to take this seriously. Any law enforcement agency can get testing done by requesting. The same is not true, I suspect of any defendant.
The Connecticut General Assembly can show national leadership quite simply with regard to the state's crime lab. Here's a three-part reform that should be met with open arms by anyone who believes in fair trials.
First, transfer control of the forensic lab from the Department of Public Safety to the Department of Public Health. This is merely an act of administrative fiat. A neutral lab belongs somewhere other than a law enforcement agency. Let it go to the same agency that assures public health. Wrongful convictions kill spirits.
Second, charge any user of the lab the same fee. When New Haven's Police Department, for example, needs a DNA test, charge a flat fee. Charge the same to any defendant asking for it. Those folks without means could apply for an indigency waiver. Indeed, nothing prevents a town from crying poor and asking for such a waiver as well.
Finally, require that the laboratory be managed by a three person panel. One appointee would come be recommended by the Office of the Chief State's Attorney. Another would be recommended by the Public Defender's Office. The final would be appointed by the Legislature's Judiciary Committee. Let the governor appoint an ombudsman to respond to complaints about whether the lab is truly neutral and even-handed.
It's a simple proposal, really. Watch who opposes it: Law enforcement and lab employees They like things just as they are. I wonder why.
Reprinted courtesy of the Connecticut Law Tribune.
Entitled Strengthening Forensic Science in the United States: A Path Forward, the 2009 report should be must reading for every judge in the state. Criminal defense lawyers will benefit from it, too: It is a storehouse of information about weaknesses in what we use as evidence. As to prosecutors, well, I suspect more than a few will wish the report were never written.
First, a pet peeve. There is no such thing as forensic science. There is simply the forensic use of science.
The scientific method, that revolutionary force that has set the world a whirring for the past 300 years, is simple: We observe the world, render hypotheses about how things are related. Patient observation and experimentation yield reliable theories on the nature of the physical world. Good science knows the strengths and weaknesses of its particular methods.
What, then, is called forensic science? That's simply a Latinate deceit. Science refers to what can be know. The fora is simply a courtroom. Forensic science is really no new and more reliable version of the core sciences. It is mere applied science. Methods used to investigate the natural world are used in the context of a legal proceeding. The next time you see a witness call himself a forensic scientist, slap him silly. There's no such thing.
Of course, the NAS doesn't go that far. No use stirring verbal hornet's nests when innocent men and women are going to prison based on evidence lawyers and judges, much less juries, do not comprehend. The NAS wants better applied science in the courtroom.
One of the report's more radical proposals is to sever the tie that binds many of the nation's forensic laboratories to law enforcement. There is a subtle bias, the report notes, when an investigator takes his check and his bearings from the needs of law enforcement. Science takes no sides. The truth sometimes convicts and it sometimes sets free.
In Connecticut, the state's forensic laboratory is housed within the same agency as the state police. While its employees profess a willingness to talk to any and all, it is hard to take this seriously. Any law enforcement agency can get testing done by requesting. The same is not true, I suspect of any defendant.
The Connecticut General Assembly can show national leadership quite simply with regard to the state's crime lab. Here's a three-part reform that should be met with open arms by anyone who believes in fair trials.
First, transfer control of the forensic lab from the Department of Public Safety to the Department of Public Health. This is merely an act of administrative fiat. A neutral lab belongs somewhere other than a law enforcement agency. Let it go to the same agency that assures public health. Wrongful convictions kill spirits.
Second, charge any user of the lab the same fee. When New Haven's Police Department, for example, needs a DNA test, charge a flat fee. Charge the same to any defendant asking for it. Those folks without means could apply for an indigency waiver. Indeed, nothing prevents a town from crying poor and asking for such a waiver as well.
Finally, require that the laboratory be managed by a three person panel. One appointee would come be recommended by the Office of the Chief State's Attorney. Another would be recommended by the Public Defender's Office. The final would be appointed by the Legislature's Judiciary Committee. Let the governor appoint an ombudsman to respond to complaints about whether the lab is truly neutral and even-handed.
It's a simple proposal, really. Watch who opposes it: Law enforcement and lab employees They like things just as they are. I wonder why.
Reprinted courtesy of the Connecticut Law Tribune.
Wednesday, March 25, 2009
He'll Keep His Home And Live In It, Too. Even so ...
Entering a plea somehow seems like the antithesis of being a lawyer, yet knowing when to a strike a deal is important. A client's life and welfare depends on the advice you give. Even so, at the end of the day, a plea feels like betrayal. So this evening I wallow.
I've been picking a jury in a criminal case in which another client, a former homicide detective, is accused of diverting funds intended for confidential informants. The state's case is thin, and, frankly, raises so many questions about what the local police department was doing that I am begnning to look forward to cross-examining the state's witnesses. But we had the day off in that case today. So I headed to the northern part of the state for the fourth day of evidence in a suppression hearing in a very different kind of case.
My client and his wife were charged with possession of marijuana with intent to sell. Police received a tip that a man with a probation violation warrant was living on the couple's property in a tent. They went to the house to check out it out. When they arrived, they found the man outside, building a shed. After placing him under arrest, they walked to his tent to find his identification. As an officer walked away from the tent, she spotted marijuana plants behind another building, or so she said.
The issue in the suppression hearing was not whether the officers had a right to be present on the property. They did. At stake was whether the plants were in plain view from any of the locations they had a right to be. The so-called plain view exception to the warrant requirment justifies a warrantless search when an officer has a right to be present in a given location and evidence of a crime is in plain view.
In this case, the officers almost certainly lied. They had long believed the couple to be major growers of marijuana. A dozen or so years ago, police tried and failed to pin 300 pounds of marijuana on the couple. Last year, officers were surveilling a field of plants believed to belong to my client just down the road from his home in a rural area of the state. The couple is suspected of growing plants at scattered locations throughout the state, including a little used strip of Bradley International Airport, some forty or so miles away. The search leading to this arrest smacks of pretext.
I do not believe in coincidences, and I am generally suspicious of serendipity that breaks in favor of the state. I suspect that cops figured that so long as they were present at the location, they'd peek around a bit. I have good reasons to believe the officers were untruthful about what they said because the plant they spotted was tied down to remain out of view when they arrived. But the source of that testimony might not be believed by the court. Lawmen don't lie, after all, or so many a court seems to think; people with criminal pasts do lie, a judge often thinks.
Had we lost the suppression hearing, the evidence against the clients was powerful. The state charged a statute requiring a five-year mandatory minimum sentence; it had also filed what is called an in rem action to seize the couple's home. All this for growing plants people smoke to feel better. Why is it a crime to grow marijuana but not to distill gin?
The state made us a deal. The offer was good until the judge made a decision about whether to suppress the evidence. If we lost the decision, the state intended to use the evidence found at the home to convict my client and send him to prison and seize his home. I could not guarantee my client we'd win the suppression hearing; indeed, I thought there was a pretty good chance we would lose it.
So we cut the deal today. My client got probation; no jail time. And he will pay a small fine and keep his home. The charges against his wife will eventually be dropped.
My client is a good man. He's in his early 60s now and not well. He will die a convicted felon. But he will remain in his own home with his wife of more than 40 years. Lawyers who keep track of wins and losses will score this one as they will. I am, frankly, ambivalent. Plea barganing always feels a bit like dealing with the devil. Tonight I smell sulphur in the air, outside my door I see the print of a cloven hoof.
I've been picking a jury in a criminal case in which another client, a former homicide detective, is accused of diverting funds intended for confidential informants. The state's case is thin, and, frankly, raises so many questions about what the local police department was doing that I am begnning to look forward to cross-examining the state's witnesses. But we had the day off in that case today. So I headed to the northern part of the state for the fourth day of evidence in a suppression hearing in a very different kind of case.
My client and his wife were charged with possession of marijuana with intent to sell. Police received a tip that a man with a probation violation warrant was living on the couple's property in a tent. They went to the house to check out it out. When they arrived, they found the man outside, building a shed. After placing him under arrest, they walked to his tent to find his identification. As an officer walked away from the tent, she spotted marijuana plants behind another building, or so she said.
The issue in the suppression hearing was not whether the officers had a right to be present on the property. They did. At stake was whether the plants were in plain view from any of the locations they had a right to be. The so-called plain view exception to the warrant requirment justifies a warrantless search when an officer has a right to be present in a given location and evidence of a crime is in plain view.
In this case, the officers almost certainly lied. They had long believed the couple to be major growers of marijuana. A dozen or so years ago, police tried and failed to pin 300 pounds of marijuana on the couple. Last year, officers were surveilling a field of plants believed to belong to my client just down the road from his home in a rural area of the state. The couple is suspected of growing plants at scattered locations throughout the state, including a little used strip of Bradley International Airport, some forty or so miles away. The search leading to this arrest smacks of pretext.
I do not believe in coincidences, and I am generally suspicious of serendipity that breaks in favor of the state. I suspect that cops figured that so long as they were present at the location, they'd peek around a bit. I have good reasons to believe the officers were untruthful about what they said because the plant they spotted was tied down to remain out of view when they arrived. But the source of that testimony might not be believed by the court. Lawmen don't lie, after all, or so many a court seems to think; people with criminal pasts do lie, a judge often thinks.
Had we lost the suppression hearing, the evidence against the clients was powerful. The state charged a statute requiring a five-year mandatory minimum sentence; it had also filed what is called an in rem action to seize the couple's home. All this for growing plants people smoke to feel better. Why is it a crime to grow marijuana but not to distill gin?
The state made us a deal. The offer was good until the judge made a decision about whether to suppress the evidence. If we lost the decision, the state intended to use the evidence found at the home to convict my client and send him to prison and seize his home. I could not guarantee my client we'd win the suppression hearing; indeed, I thought there was a pretty good chance we would lose it.
So we cut the deal today. My client got probation; no jail time. And he will pay a small fine and keep his home. The charges against his wife will eventually be dropped.
My client is a good man. He's in his early 60s now and not well. He will die a convicted felon. But he will remain in his own home with his wife of more than 40 years. Lawyers who keep track of wins and losses will score this one as they will. I am, frankly, ambivalent. Plea barganing always feels a bit like dealing with the devil. Tonight I smell sulphur in the air, outside my door I see the print of a cloven hoof.
The Dawn of E-Trials?
If you can, find a copy of the letters to the editor in Monday's New York Times. Six letters were published under a banner headline that reads: "When Jurors Seek Evidence Online." The viewpoints expressed there have had me ruminating for days.
The letters were in response to a front-page story about jurors' use of the Internet, Twitter and other electronic devices during trial. Recently, a two-month long criminal case was mistried in Florida when it was discovered that jurors were violating a court order by communicating about the case and doing research online.
One of the law's great fictions is the presumption that a properly instructed jury follows the law. Tell a juror not to do something, and, the law presumes, if the instruction was correct, that all is ducky. But do jurors really follow the law? Do they really speak to no one about the case on which they are sitting as the case progresses? Do they never visit the crime scene as they drive home and no one is looking? And, in this the easiest of all possible information ages, do they really refrain from looking things up on line during trial?
When the jury system was first born in England jurors were drawn from a cross section of people who knew their community. They were aware of who the players in the case were. Indeed, knowing about the people seemed to make sense. If Joe the Candlemaker was a notorious blowhard then, of course, you'd discount what ever version of the truth he offered on a given day.
Over time, the requirement for a fair cross section of the community has morphed into something resembling the a jury of perfect strangers. We work so hard to eliminate bias now that the metaphor most apt to define a courtroom is an operating room. We elimante as many sources of infection as we can. If you know a party, or a location, you are done.
The letter writers to the Times challenged me to rethink not just whether the courtroom can be a sterile operating room, but even whether it should be. A law student in Washington, Luke Wilson, writes: "Jurors' use of the Internet reflects both the bay-to-day importance of the Internet as well as a revolt against a system that insists on keeping intelligent and discerning jurors from being given the whole truth before they render a verdict."
Most states require jurors to follow the law as given, and forbid them from nullifying a bad law. We then tell jurors that the consequences of a sentence of guilty are not their concern. During trial, we clip the edges of things such that the jurors see only a piece of the larger reality animating a case. Is it any wonder that jurors revolt and seek a fuller picture where they can find it?
I confess to tunnel vision. Come the trial of a case I see only what I perceive to be my client's interest, and then I fight like a cornered dog to make sure the jury sees only what I want it to see. We assume that if my adversary does likewise and a competent judge does hers, the process will yield justice. Perhaps jurors are telling us otherwise. Is the use of the Internet during trial inevitable?
The Times letter has me rethinking trial strategies.
The letters were in response to a front-page story about jurors' use of the Internet, Twitter and other electronic devices during trial. Recently, a two-month long criminal case was mistried in Florida when it was discovered that jurors were violating a court order by communicating about the case and doing research online.
One of the law's great fictions is the presumption that a properly instructed jury follows the law. Tell a juror not to do something, and, the law presumes, if the instruction was correct, that all is ducky. But do jurors really follow the law? Do they really speak to no one about the case on which they are sitting as the case progresses? Do they never visit the crime scene as they drive home and no one is looking? And, in this the easiest of all possible information ages, do they really refrain from looking things up on line during trial?
When the jury system was first born in England jurors were drawn from a cross section of people who knew their community. They were aware of who the players in the case were. Indeed, knowing about the people seemed to make sense. If Joe the Candlemaker was a notorious blowhard then, of course, you'd discount what ever version of the truth he offered on a given day.
Over time, the requirement for a fair cross section of the community has morphed into something resembling the a jury of perfect strangers. We work so hard to eliminate bias now that the metaphor most apt to define a courtroom is an operating room. We elimante as many sources of infection as we can. If you know a party, or a location, you are done.
The letter writers to the Times challenged me to rethink not just whether the courtroom can be a sterile operating room, but even whether it should be. A law student in Washington, Luke Wilson, writes: "Jurors' use of the Internet reflects both the bay-to-day importance of the Internet as well as a revolt against a system that insists on keeping intelligent and discerning jurors from being given the whole truth before they render a verdict."
Most states require jurors to follow the law as given, and forbid them from nullifying a bad law. We then tell jurors that the consequences of a sentence of guilty are not their concern. During trial, we clip the edges of things such that the jurors see only a piece of the larger reality animating a case. Is it any wonder that jurors revolt and seek a fuller picture where they can find it?
I confess to tunnel vision. Come the trial of a case I see only what I perceive to be my client's interest, and then I fight like a cornered dog to make sure the jury sees only what I want it to see. We assume that if my adversary does likewise and a competent judge does hers, the process will yield justice. Perhaps jurors are telling us otherwise. Is the use of the Internet during trial inevitable?
The Times letter has me rethinking trial strategies.
Tuesday, March 24, 2009
Sure, I Represent Cops, So What?
"What's the matter with you?" The speaker is a good friend and a well-known member of the criminal defense bar. "Why are you representing people like that?"
He was calling into question my representation of a former police officer. The cop was fired from his police force after being videotaped pummeling a man during an arrest. We entered a guilty plea to misdemeanor assault and no jail time last week. After the guilty plea, the client's former employer released the videotape to the press. Then all Hell broke lose. More than 100 newspapers and television stations have either run the video or commented on the case.
I've viewed the tape dozens of times. The victim was suspected of using a gun in a road rage incident. He fled from police. When he was stopped, my client thought the man reached for a gun. Rather than shoot the victim, my client pistol punched him. For a few terrifying seconds, he could not tell what the man had in his hands. When he saw the man's hands, finally, he stopped punching. There was also a struggle to get the man out of his car, onto the ground and into cuffs. The use of force in these circumstances was justified, in my view, and I've tried dozens of unreasonable force cases in the federal courts.
But the prosecution thought otherwise. My client was charged with a felony. The tape is shocking and their is intemperate language on it. There was a risk he might be convicted, so the plea, which carried no jail time. It was an intelligent means of managing his risk.
But here is the rub: I am a lawyer. I know I have choices and that I am not obliged to represent everyone who walks in my door. But I do not draw distinctions between folks accused of crimes. I represent people accused of abusing children, dismembering bodies, burning down homes, robbing banks; why, shocking to some, I even represent police officers. Indeed, this morning when I checked my messages, I see another cop has called. This is an officer I sued for false arrest 12 years ago. I won the case.
Quite frankly, I am troubled by the sporting view of law which pits one "team" against another. One of the reasons I fled Gerry Spence's Trial Lawyers College, and there were many other reasons, was the cult-like exclusivity of the program: No prosecutors or insurance defense counsel allowed. That's just plain stupid. "The people" need representation in many contexts. I know more want a person accused of killing a family member to walk free than I want my insurance company to go insolvent paying bogus claims.
Lawyers are mere ambassadors for other people's troubles. I don't have causes that transcend a particular case. When my agenda conflicts with that of my client, I may have a conflict that impedes my representation.
Baby-faced play acting at cowboys and Indians does not interest me. Sure, I represented a cop last week. Big deal. I am representing another one this week, this one a homicide detective accused of pilfering funds intended for confidential informants. Today is day two of jury selection.
I would not have it any other way, which is another way of saying, I suppose, that the Church of the True Believer is another door I will darken.
He was calling into question my representation of a former police officer. The cop was fired from his police force after being videotaped pummeling a man during an arrest. We entered a guilty plea to misdemeanor assault and no jail time last week. After the guilty plea, the client's former employer released the videotape to the press. Then all Hell broke lose. More than 100 newspapers and television stations have either run the video or commented on the case.
I've viewed the tape dozens of times. The victim was suspected of using a gun in a road rage incident. He fled from police. When he was stopped, my client thought the man reached for a gun. Rather than shoot the victim, my client pistol punched him. For a few terrifying seconds, he could not tell what the man had in his hands. When he saw the man's hands, finally, he stopped punching. There was also a struggle to get the man out of his car, onto the ground and into cuffs. The use of force in these circumstances was justified, in my view, and I've tried dozens of unreasonable force cases in the federal courts.
But the prosecution thought otherwise. My client was charged with a felony. The tape is shocking and their is intemperate language on it. There was a risk he might be convicted, so the plea, which carried no jail time. It was an intelligent means of managing his risk.
But here is the rub: I am a lawyer. I know I have choices and that I am not obliged to represent everyone who walks in my door. But I do not draw distinctions between folks accused of crimes. I represent people accused of abusing children, dismembering bodies, burning down homes, robbing banks; why, shocking to some, I even represent police officers. Indeed, this morning when I checked my messages, I see another cop has called. This is an officer I sued for false arrest 12 years ago. I won the case.
Quite frankly, I am troubled by the sporting view of law which pits one "team" against another. One of the reasons I fled Gerry Spence's Trial Lawyers College, and there were many other reasons, was the cult-like exclusivity of the program: No prosecutors or insurance defense counsel allowed. That's just plain stupid. "The people" need representation in many contexts. I know more want a person accused of killing a family member to walk free than I want my insurance company to go insolvent paying bogus claims.
Lawyers are mere ambassadors for other people's troubles. I don't have causes that transcend a particular case. When my agenda conflicts with that of my client, I may have a conflict that impedes my representation.
Baby-faced play acting at cowboys and Indians does not interest me. Sure, I represented a cop last week. Big deal. I am representing another one this week, this one a homicide detective accused of pilfering funds intended for confidential informants. Today is day two of jury selection.
I would not have it any other way, which is another way of saying, I suppose, that the Church of the True Believer is another door I will darken.
Monday, March 23, 2009
The Road Hill Murder Stunningly Revisited
The country manor is a set piece of Victorian English literature. On the surface, all is peaceful and orderly. But passion stirs beneath the calm. Sometimes deadly passion.
On the night of June 29, 1860, a three year old boy went missing. His nursemaid awoke to find an empty bed. The child was not with his parents. Indeed, he was nowhere to found, at least not alive. Hours after he was declared missing, the lifeless body of Saville Kent was found amid the waste in the family outhouse, his throat cut, stabbed in the chest and, perhaps, choked. It was an event which transfixed England.
The 12-room home, known as Road Hill House at the time, now known as Lambert House, was locked down for the night. There were no signs of an intruder. The inescapable and unthinkable conclusion was that one of the occupants murdered Saville and dispossed of his body before dawn. But who? And why?
Thus was framed the classic whodunit. Put a dozen people in a house. Father, mother, step-mother, children from two marriages, servants, and then simmer to boiling. The Road Hill murder went unsolved for five years. The Kent family was villified. Scotland Yard, just struggling to find its feet, was called in. Bumbling wellwishers offered clues, tips and even held an inquiry to find the killer. In the end the case was solved by a confession that still has some wondering whether the identity of the killer is really known.
The Bronte sisters read about this case; its eerie almost haunted quality is resonates in their fiction. Dicken's Bleak House reflects the events. And for almost one hundred and fifty years since, there has been a steady stream of commentary and speculation about the case and its meaning. Early detective fiction, controversial at the time, drew upon the tangled relationships in the home for inspiration. And they focused on the Jonathan Whicher, the detective assigned to the case, to develop a new and suspect type of literary hero.
Kate Summerscale's The Suspicions of Mr. Whicher, (Walker & Company, New York: 2008) is a wholly capable and enjoyable look at the crime and its consequences. Ms. Summerscale is the former literary editor of the Daily Telegraph. She writes with a novelist's ease and a scholar's sense of proportion. The endnotes are as fascinating as the text. This is not merely a book about a "true crime." Rather, it is a sophisticated and engaging study of the social history of crime.
One startling effect of the work is a reminder of just how much we take government intrusion for granted today. Ms. Summerscale reminds us that it was once a national scandal in Britain to have undercover police officers surveilling citizens. And England took serious in a way we have long since forsaken the notion that a man's home is his castle.
A newspaper editorial published by the Morning Post 10 days after the Road Hill murder reflects the national mood. By contrast, our attitude toward the Fourth Amendment look attentuated. The exceptions to the warrant requirement have all but held open even the most private spaces to government inquiry.
"Every Englishman is accustomed to pride himself with more than usual complacency upon what is called the sanctity of the English home. No solider, no policeman, no spy of the Government dare enter it ... Unlike the tenant of a foreign domicile, the occupier of an English house, whether it be mansion or cottage, possesses an indisputable title against every kind of aggression upon his threshold. He defies everybody below the Home Secretary; and even he can only violate the traditional security of a man's house under extreme circumstances, ... It is with this thoroughly innate feeling of security that every Englishman feels a strong sense of the inviolability of his own house. It is this that converts the moorside cottage into a castle. The moral sanctions of an English home are, in the nineteenth century, what the moat, and the keep, and the drawbridge were in the fourteenth. In the strength of these we lie down to sleep at night, and leave our homes in the day, feeling that a whole neighbourhood would be raised, nay, the whole country, were any attempt made to violate what so many traditions, and such long custom, have rendered sacred."
You will not be sorry to have read this book.
On the night of June 29, 1860, a three year old boy went missing. His nursemaid awoke to find an empty bed. The child was not with his parents. Indeed, he was nowhere to found, at least not alive. Hours after he was declared missing, the lifeless body of Saville Kent was found amid the waste in the family outhouse, his throat cut, stabbed in the chest and, perhaps, choked. It was an event which transfixed England.
The 12-room home, known as Road Hill House at the time, now known as Lambert House, was locked down for the night. There were no signs of an intruder. The inescapable and unthinkable conclusion was that one of the occupants murdered Saville and dispossed of his body before dawn. But who? And why?
Thus was framed the classic whodunit. Put a dozen people in a house. Father, mother, step-mother, children from two marriages, servants, and then simmer to boiling. The Road Hill murder went unsolved for five years. The Kent family was villified. Scotland Yard, just struggling to find its feet, was called in. Bumbling wellwishers offered clues, tips and even held an inquiry to find the killer. In the end the case was solved by a confession that still has some wondering whether the identity of the killer is really known.
The Bronte sisters read about this case; its eerie almost haunted quality is resonates in their fiction. Dicken's Bleak House reflects the events. And for almost one hundred and fifty years since, there has been a steady stream of commentary and speculation about the case and its meaning. Early detective fiction, controversial at the time, drew upon the tangled relationships in the home for inspiration. And they focused on the Jonathan Whicher, the detective assigned to the case, to develop a new and suspect type of literary hero.
Kate Summerscale's The Suspicions of Mr. Whicher, (Walker & Company, New York: 2008) is a wholly capable and enjoyable look at the crime and its consequences. Ms. Summerscale is the former literary editor of the Daily Telegraph. She writes with a novelist's ease and a scholar's sense of proportion. The endnotes are as fascinating as the text. This is not merely a book about a "true crime." Rather, it is a sophisticated and engaging study of the social history of crime.
One startling effect of the work is a reminder of just how much we take government intrusion for granted today. Ms. Summerscale reminds us that it was once a national scandal in Britain to have undercover police officers surveilling citizens. And England took serious in a way we have long since forsaken the notion that a man's home is his castle.
A newspaper editorial published by the Morning Post 10 days after the Road Hill murder reflects the national mood. By contrast, our attitude toward the Fourth Amendment look attentuated. The exceptions to the warrant requirement have all but held open even the most private spaces to government inquiry.
"Every Englishman is accustomed to pride himself with more than usual complacency upon what is called the sanctity of the English home. No solider, no policeman, no spy of the Government dare enter it ... Unlike the tenant of a foreign domicile, the occupier of an English house, whether it be mansion or cottage, possesses an indisputable title against every kind of aggression upon his threshold. He defies everybody below the Home Secretary; and even he can only violate the traditional security of a man's house under extreme circumstances, ... It is with this thoroughly innate feeling of security that every Englishman feels a strong sense of the inviolability of his own house. It is this that converts the moorside cottage into a castle. The moral sanctions of an English home are, in the nineteenth century, what the moat, and the keep, and the drawbridge were in the fourteenth. In the strength of these we lie down to sleep at night, and leave our homes in the day, feeling that a whole neighbourhood would be raised, nay, the whole country, were any attempt made to violate what so many traditions, and such long custom, have rendered sacred."
You will not be sorry to have read this book.
Sunday, March 22, 2009
I Didn't Go To Princeton And I Never Heard Of This
I think I will put this right next to my Harvard toaster and my Oxford ironing board.
Give me a break, people.
Dear Norman,
It is my pleasure to inform you that you are being considered for inclusion into the 2009-2010 Princeton Premier Business Leaders and Professionals Honors Edition section of the registry.
The 2009-2010 edition of the registry will include biographies of the world's most accomplished individuals. Recognition of this kind is an honor shared by thousands of executives and professionals throughout the world each year. Inclusion is considered by many as the single highest mark of achievement.
You may access our application form using the following link:
http://www.formdesk.com/pgn/New
Upon final confirmation, you will be listed among other accomplished individuals in the Princeton Premier Registry.
For accuracy and publication deadlines, please complete your application form and return it to us within five business days.
There is no cost to be included in the registry.
If you've already received this email from us, there is no need to respond again.
This email serves as our final invitation to potential members who have not yet responded.
On behalf of the Executive Publisher, we wish you continued success.
Sincerely, Jason Harris
Managing DirectorPrinceton Premier
Give me a break, people.
Dear Norman,
It is my pleasure to inform you that you are being considered for inclusion into the 2009-2010 Princeton Premier Business Leaders and Professionals Honors Edition section of the registry.
The 2009-2010 edition of the registry will include biographies of the world's most accomplished individuals. Recognition of this kind is an honor shared by thousands of executives and professionals throughout the world each year. Inclusion is considered by many as the single highest mark of achievement.
You may access our application form using the following link:
http://www.formdesk.com/pgn/New
Upon final confirmation, you will be listed among other accomplished individuals in the Princeton Premier Registry.
For accuracy and publication deadlines, please complete your application form and return it to us within five business days.
There is no cost to be included in the registry.
If you've already received this email from us, there is no need to respond again.
This email serves as our final invitation to potential members who have not yet responded.
On behalf of the Executive Publisher, we wish you continued success.
Sincerely, Jason Harris
Managing DirectorPrinceton Premier
The Good Samaritan
The story of the Good Samaritan is perhaps the best know of all parables attributed to Jesus. It is found in Luke 10:30-37.
"A man was going down from Jerusalem to Jericho, when he fell into the hands of robbers. They stripped him of his clothes, beat him and went away, leaving him half dead.
"A priest happened to be going down the same road, and when he saw the man, he passed by on the other side. So too, a Levite, when he came to the place and saw him, passed by on the other side. But a Samaritan, as he traveled, came where the man was; and when he saw him, he took pity on him. He went to him and bandaged his wounds, pouring on oil and wine. Then he put the man on his own donkey, took him to an inn and took care of him. The next day he took out two silver coins and gave them to the innkeeper. 'Look after him,' he said, 'and when I return, I will reimburse you for any extra expense you may have.'
"Which of these three do you think was a neighbor to the man who fell into the hands of robbers?" The expert in the law replied, "The one who had mercy on him." Jesus told him, "Go and do likewise."
Where to begin?
Several historical notes. The road to Jericho was a lonely one. There was a great chance of robbery or worse for travelers on this road. Call Jericho the first literary mean street?
And what of the scribe and Pharisee? Scribes are we learned types, those, such as lawyers, who live by applying our wits to other people's problems, compassionate advocates for a fee. Pharisees were those who placed great stock in ritual purity, folks confusing looking good with being good.
And the Samaritan? He's from the wrong side of the track. But inspite of opportunites and appearances, the Samaritan is best able to respond to raw human need. He comes to the rescue of the victim, assures for his recovery and then pledges himself to meeting the basic needs of a stranger.
I love this parable, even though I heed its message all to infrequently. We're all outsides to others. Yet we have the ability to make the other one of us. The lines that divide are arbitrary. Compassion and courage can blur them.
"A man was going down from Jerusalem to Jericho, when he fell into the hands of robbers. They stripped him of his clothes, beat him and went away, leaving him half dead.
"A priest happened to be going down the same road, and when he saw the man, he passed by on the other side. So too, a Levite, when he came to the place and saw him, passed by on the other side. But a Samaritan, as he traveled, came where the man was; and when he saw him, he took pity on him. He went to him and bandaged his wounds, pouring on oil and wine. Then he put the man on his own donkey, took him to an inn and took care of him. The next day he took out two silver coins and gave them to the innkeeper. 'Look after him,' he said, 'and when I return, I will reimburse you for any extra expense you may have.'
"Which of these three do you think was a neighbor to the man who fell into the hands of robbers?" The expert in the law replied, "The one who had mercy on him." Jesus told him, "Go and do likewise."
Where to begin?
Several historical notes. The road to Jericho was a lonely one. There was a great chance of robbery or worse for travelers on this road. Call Jericho the first literary mean street?
And what of the scribe and Pharisee? Scribes are we learned types, those, such as lawyers, who live by applying our wits to other people's problems, compassionate advocates for a fee. Pharisees were those who placed great stock in ritual purity, folks confusing looking good with being good.
And the Samaritan? He's from the wrong side of the track. But inspite of opportunites and appearances, the Samaritan is best able to respond to raw human need. He comes to the rescue of the victim, assures for his recovery and then pledges himself to meeting the basic needs of a stranger.
I love this parable, even though I heed its message all to infrequently. We're all outsides to others. Yet we have the ability to make the other one of us. The lines that divide are arbitrary. Compassion and courage can blur them.
Friday, March 20, 2009
AIG Rage Misdirected
I am as disgusted as the next person about the bonuses to AIG executives. Rewarding folks for failure is ridiculous. Making me pay for it feels like a crime. But I am even more concerned about the consequences of rage run amok. The AIG furor has the feel of an American Kristillnacht. Let's just all look away while an outrage is committed in our name.
Today's Hartford Courant reports that state lawmakers have issued a subpoena to AIG's chief executive to explain the bonus. This subpoena is an abuse of process. Those who signed it should be ashamed of behaving as little more than pimps to public rage. Even Connecticut's Attorney General, Richard Blumenthal, has signed on to this charade. Shame on you; each of you. You were elected to lead, not stoop to the lowest common denominator.
And it gets worse. The homes of AIG bonus-recipients in Connecticut are now tourist attractions for populist ragemongers. Buses will convey folks to the homes to gawk, scorn and harass the recipients. I say prosecute each and every one of these folks if they so much as step foot on property of one of these people. The bonus recipients did nothing wrong.
All this rage and fury is misdirected. Lawmakers ought to be walking the street in sack cloth and ash begging our fogriveness instead of pointing the finger at others. Where was Congress, Mr. Blumenthal and statelawmakers when the bailout plan was hatched? Why didn't they notice contracts struck before the bubble burst? The fault is theirs, and rather than behaving like a financial lynch mob set to attack private citizens, an angry public ought to preparing to count scalps at the next election of lawmakers.
The Government got snookered. Edward M. Liddy should be fired. And any future bailout money ladled into Wall Street's troughs ought to come with the explicit condition that bonuses will not be paid. These bailouts should be treated as constructive bankruptcies. A firm receiving funds agrees to restructure its obligations.
But, and this is a pivotal but, let's not get crazy about the folks who actually received the bonuses. A couple towns over from me in Fairfield a man named James Haas has a new nickname, "Jackpot Jimmy." And he has a lawn full of reporters and angry neighbors. You see, he got a bonus this week. People now have a local face toward which to direct their rage. Haas is frightened and concerned for his family's safety. He has received death threats. An angry mob has made him a marked man.
Part of that mob is sitting in Congress. There is no branch of government quite so dangerous as the legislature. Any self-righteous fool can mount a soap box and reform the world with words. But but a roomful of these fools in a room and call them Congress and they can make law. When inspired by rage and moment those laws can have all the appeal of gas can at a bonfire. Talk of a punitive tax on these bonuses makes a mockery of the rule of law. Call it intellectual treason.
When the recipients of the AIG bonuses entered into contracts to get rich, no one objected. That is because we were all giddy on the same helium being sucked from a balloon about to pop. Now the bubble has burst, and most of us are hurting. But we have only ourselves to blame.
I am angered by the bonuses. No doubt about it. But I am not angry at the folks who received them. I am envious of their windfall, but a more powerful emotion is now pity. I worry that an angry mob will trample them underfoot.
The focus of my anger is on the lawmakers and administration officials who negotiated a bailout without counting all the strings attached to the deal. These folks should be the focus of our rage.
Today's Hartford Courant reports that state lawmakers have issued a subpoena to AIG's chief executive to explain the bonus. This subpoena is an abuse of process. Those who signed it should be ashamed of behaving as little more than pimps to public rage. Even Connecticut's Attorney General, Richard Blumenthal, has signed on to this charade. Shame on you; each of you. You were elected to lead, not stoop to the lowest common denominator.
And it gets worse. The homes of AIG bonus-recipients in Connecticut are now tourist attractions for populist ragemongers. Buses will convey folks to the homes to gawk, scorn and harass the recipients. I say prosecute each and every one of these folks if they so much as step foot on property of one of these people. The bonus recipients did nothing wrong.
All this rage and fury is misdirected. Lawmakers ought to be walking the street in sack cloth and ash begging our fogriveness instead of pointing the finger at others. Where was Congress, Mr. Blumenthal and statelawmakers when the bailout plan was hatched? Why didn't they notice contracts struck before the bubble burst? The fault is theirs, and rather than behaving like a financial lynch mob set to attack private citizens, an angry public ought to preparing to count scalps at the next election of lawmakers.
The Government got snookered. Edward M. Liddy should be fired. And any future bailout money ladled into Wall Street's troughs ought to come with the explicit condition that bonuses will not be paid. These bailouts should be treated as constructive bankruptcies. A firm receiving funds agrees to restructure its obligations.
But, and this is a pivotal but, let's not get crazy about the folks who actually received the bonuses. A couple towns over from me in Fairfield a man named James Haas has a new nickname, "Jackpot Jimmy." And he has a lawn full of reporters and angry neighbors. You see, he got a bonus this week. People now have a local face toward which to direct their rage. Haas is frightened and concerned for his family's safety. He has received death threats. An angry mob has made him a marked man.
Part of that mob is sitting in Congress. There is no branch of government quite so dangerous as the legislature. Any self-righteous fool can mount a soap box and reform the world with words. But but a roomful of these fools in a room and call them Congress and they can make law. When inspired by rage and moment those laws can have all the appeal of gas can at a bonfire. Talk of a punitive tax on these bonuses makes a mockery of the rule of law. Call it intellectual treason.
When the recipients of the AIG bonuses entered into contracts to get rich, no one objected. That is because we were all giddy on the same helium being sucked from a balloon about to pop. Now the bubble has burst, and most of us are hurting. But we have only ourselves to blame.
I am angered by the bonuses. No doubt about it. But I am not angry at the folks who received them. I am envious of their windfall, but a more powerful emotion is now pity. I worry that an angry mob will trample them underfoot.
The focus of my anger is on the lawmakers and administration officials who negotiated a bailout without counting all the strings attached to the deal. These folks should be the focus of our rage.
Twitter, Google, Chatter: Perhaps Sequestration Is In Order
I start jury selection in a criminal case next week and I am worried. My client is a former New Haven homicide detective accused of stealing money intended for confidential informants in ongoing murder investigations. We are prepared to defend against those allegations. What I worry about is whether the jury will follow the law.
A piece in this week's New York Times fanned my anxiety into full-blown paranoia. After eight weeks of trial, United States District Judge William J. Zloch declared a mistrial in criminal case when he discovered that jurors had been doing research on the case on the Internet. Apparently, jurors across this great land of ours have trouble keeping their fingers off the keyboard: Google searchs, messages on Facebook, and Twittering are disrputing trials everywhere.
My client has pleaded not guilty and has demanded a right to a jury trial. As I say to juries, the government has made a mistake here, and we need your help in sorting it out. As we have awaited trial, cases my client investigated have been called to trial. I have refused to permit my client to testify in these cases. He has asserted his Fifth Amendment right to remain silent in each of these cases, and that has been reported in the press. It is, after all, big news when a cop refuses to testify about an investigation because it might tend to incriminate him.
As luck would have it, several trials are taking place in New Haven in the next couple of weeks. My client is a defendant in one. A man accused of murder is a defendant in another. And, you guessed it, my client was the lead investigator in the murder case. I have already been approached by the prosecutor in the murder case about my client's intention. The answer is simple: He will not testify. I suspect that will once again make the front page of the local paper.
When a witness pleads the Fifth Amendment in a criminal case it is typically done outside the presence of the jury. The reason for this is that a person's assertion of the right to remain silent must not, as a matter of law, be used against them in a criminal case. (The rules are different on the civil side.) We worry that jurors will get this wrong. Pop culture supports this concern: Folks "take the Fifth" in all sorts of colloquial settings.
Will jurors in my client's case read the newspaper next week or the following week and see that my client is refusing to testify in a murder case? I am willing to bet on it. And I am willing to bet that one or more of them will also Google his name. I will never have a chance to challenge the perceptions jurors form from this material. A fair trial is at risk
This conduct violates the law. Jurors are instructed not to do their own research on a case. They are told not to discuss it, even among themselves, until the case ends and they are told to deliberate. The law operates under a presumption that a properly instructed jury understands the law. That is more like something we assume, and we all know what assuming something makes of 'u" and "me."
I wonder whether it is time to renew the practice of sequestering jurors during trial. Isolate them in a hotel room without Internet connections. Deprive them of cell phones. Keep them safe not just from the influence of others, but from the almost irresistable impulse we electronically addicted sorts have to instant information.
Impractical you say? Too expensive? Too great an imposition on a juror's life? I am not buying these lines. A criminal trial pits the state against an individual fighting for his freedom. Trial is a public operating room where the state plays surgeon in an effort to excise a source of disease from the body politic. We have too many pathogens in the operating room just now; too many sources of opportunistic infection.
Sequestration would not only be a good way of assuring the integrity of the trial process, it would also most likely save the state money in the end. The practice would force the state to be more selective in deciding when and if to charge and try a criminal case. Right now there is little economic incentive for prosecutors to be wise: Their costs are fixed, the prisons are always open, and lawmakers belch out crimes year by year. Making trial more costly might deter lawmakers from criminalizing everything.
I'm worried about next week. The state's evidence is only part of what I fear. Even more dreadful is the silent speculation of jurors about facts I will never get to confront and explain.
A piece in this week's New York Times fanned my anxiety into full-blown paranoia. After eight weeks of trial, United States District Judge William J. Zloch declared a mistrial in criminal case when he discovered that jurors had been doing research on the case on the Internet. Apparently, jurors across this great land of ours have trouble keeping their fingers off the keyboard: Google searchs, messages on Facebook, and Twittering are disrputing trials everywhere.
My client has pleaded not guilty and has demanded a right to a jury trial. As I say to juries, the government has made a mistake here, and we need your help in sorting it out. As we have awaited trial, cases my client investigated have been called to trial. I have refused to permit my client to testify in these cases. He has asserted his Fifth Amendment right to remain silent in each of these cases, and that has been reported in the press. It is, after all, big news when a cop refuses to testify about an investigation because it might tend to incriminate him.
As luck would have it, several trials are taking place in New Haven in the next couple of weeks. My client is a defendant in one. A man accused of murder is a defendant in another. And, you guessed it, my client was the lead investigator in the murder case. I have already been approached by the prosecutor in the murder case about my client's intention. The answer is simple: He will not testify. I suspect that will once again make the front page of the local paper.
When a witness pleads the Fifth Amendment in a criminal case it is typically done outside the presence of the jury. The reason for this is that a person's assertion of the right to remain silent must not, as a matter of law, be used against them in a criminal case. (The rules are different on the civil side.) We worry that jurors will get this wrong. Pop culture supports this concern: Folks "take the Fifth" in all sorts of colloquial settings.
Will jurors in my client's case read the newspaper next week or the following week and see that my client is refusing to testify in a murder case? I am willing to bet on it. And I am willing to bet that one or more of them will also Google his name. I will never have a chance to challenge the perceptions jurors form from this material. A fair trial is at risk
This conduct violates the law. Jurors are instructed not to do their own research on a case. They are told not to discuss it, even among themselves, until the case ends and they are told to deliberate. The law operates under a presumption that a properly instructed jury understands the law. That is more like something we assume, and we all know what assuming something makes of 'u" and "me."
I wonder whether it is time to renew the practice of sequestering jurors during trial. Isolate them in a hotel room without Internet connections. Deprive them of cell phones. Keep them safe not just from the influence of others, but from the almost irresistable impulse we electronically addicted sorts have to instant information.
Impractical you say? Too expensive? Too great an imposition on a juror's life? I am not buying these lines. A criminal trial pits the state against an individual fighting for his freedom. Trial is a public operating room where the state plays surgeon in an effort to excise a source of disease from the body politic. We have too many pathogens in the operating room just now; too many sources of opportunistic infection.
Sequestration would not only be a good way of assuring the integrity of the trial process, it would also most likely save the state money in the end. The practice would force the state to be more selective in deciding when and if to charge and try a criminal case. Right now there is little economic incentive for prosecutors to be wise: Their costs are fixed, the prisons are always open, and lawmakers belch out crimes year by year. Making trial more costly might deter lawmakers from criminalizing everything.
I'm worried about next week. The state's evidence is only part of what I fear. Even more dreadful is the silent speculation of jurors about facts I will never get to confront and explain.
Thursday, March 19, 2009
The Grand Inquistoress?
Karen Goodrow is one of my heroines. She is Director of Connecticut’s Innocence Project. Her salary is paid by the State’s Public Defender’s Office, and she is housed by the good folks of McCarter & English, who serve the gods demanding pro bono service. She is a true believe, a cardinal, well, perhaps even a pope, among true believers.
But as she spoke the other night about DNA evidence at a Connecticut Bar Association program I began to feel as though I were attending a wake. It was not simply that she was dressed in black, although that may perhaps have added to the funereal mood. It was what she said that drove me further into the arms of my analyst. You see, whether knowingly or not, Karen was forecasting the death of the adversarial system in certain classes of criminal cases. I’ll forever think of her now as the Grand Inquisitoress.
DNA, the stuff we share with chimpanzees and every other living organism, is the rage just now in criminal courts. It is magic stuff. Never mind that all but a fraction of ours is identical to our tree-swinging pals at the zoo. The part that sets us apart is unique, and it separates us one from another in ways that make what the forensic crowd calls individuation possible.
According to the National Academy of Sciences, DNA evidence is along among applications of science to evidence in its ability to confidently say that material comes from one person to the exclusion of others. Competent DNA testing literally has the power to set a person free, as Goodrow well knows. Her dogged and brilliant work set James Calvin Tillman free. His DNA, you see, what not on the victim’s clothing. Put in the jargon of criminal defense lawyers: Some other dude did it.
Everyone, it turns out, now expects DNA evidence. Its absence can destroy an otherwise solid case if a juror thinks DNA is required to dispel reasonable doubt.
But much though I admire Goodrow, I shuddered as she spoke. She was explaining the protocol used by the Innocence Project in selecting cases. They look for cases in which there is evidence of factual innocence. There must be new evidence; they don’t want to retry old cases with old evidence.
When DNA is present, Good row reports, she can count on the help what she referred to as "our lab." Whence this possessive pronoun? Has McCarter & English funded an independent forensic lab, too. (Note to Charles Ray: I want a job.)
No. Goodrow has become quite chummy with the Connecticut Forensic Laboratory. This agency feigns independence, but is, in fact, an organ of the Connecticut Department of Public Safety. That is the same agency that oversees the state police.
In a recent report, the National Academy of Sciences called for truly independent crime labs. Such labs "should function independently of law enforcement administrators," a national panel of scientists concluded. The report also called for uniform national standards for the training and accreditation of folks working in forensic labs. Right now, it is a free for all out there. Junk
science is everywhere. Ask Henry Lee, whose golden arches are everywhere.
What is striking about the NAS report is that the list of folks on the panel and the list of those who testified before it does not include Dr. Henry Lee or anyone, apparently, associated with the University of West Haven. It is as though the owl of Minerva flew right over Connecticut (OK. Obscure reference check: Wisdom.)
Listening to Karen the other night I foresaw a set of judicial proceedings in which evidence is simply mailed in by a state forensic lab. The tests will do all the talking. That should reassure, I suppose, but the sources of human error and bias in any test are ever present. Even in the Connecticut Forensic Laboratory. Don’t get too chummy with the state Karen. We need a truly independent set of forensic labs.
Reprinted courtest of the Connecticut Law Tribune.
But as she spoke the other night about DNA evidence at a Connecticut Bar Association program I began to feel as though I were attending a wake. It was not simply that she was dressed in black, although that may perhaps have added to the funereal mood. It was what she said that drove me further into the arms of my analyst. You see, whether knowingly or not, Karen was forecasting the death of the adversarial system in certain classes of criminal cases. I’ll forever think of her now as the Grand Inquisitoress.
DNA, the stuff we share with chimpanzees and every other living organism, is the rage just now in criminal courts. It is magic stuff. Never mind that all but a fraction of ours is identical to our tree-swinging pals at the zoo. The part that sets us apart is unique, and it separates us one from another in ways that make what the forensic crowd calls individuation possible.
According to the National Academy of Sciences, DNA evidence is along among applications of science to evidence in its ability to confidently say that material comes from one person to the exclusion of others. Competent DNA testing literally has the power to set a person free, as Goodrow well knows. Her dogged and brilliant work set James Calvin Tillman free. His DNA, you see, what not on the victim’s clothing. Put in the jargon of criminal defense lawyers: Some other dude did it.
Everyone, it turns out, now expects DNA evidence. Its absence can destroy an otherwise solid case if a juror thinks DNA is required to dispel reasonable doubt.
But much though I admire Goodrow, I shuddered as she spoke. She was explaining the protocol used by the Innocence Project in selecting cases. They look for cases in which there is evidence of factual innocence. There must be new evidence; they don’t want to retry old cases with old evidence.
When DNA is present, Good row reports, she can count on the help what she referred to as "our lab." Whence this possessive pronoun? Has McCarter & English funded an independent forensic lab, too. (Note to Charles Ray: I want a job.)
No. Goodrow has become quite chummy with the Connecticut Forensic Laboratory. This agency feigns independence, but is, in fact, an organ of the Connecticut Department of Public Safety. That is the same agency that oversees the state police.
In a recent report, the National Academy of Sciences called for truly independent crime labs. Such labs "should function independently of law enforcement administrators," a national panel of scientists concluded. The report also called for uniform national standards for the training and accreditation of folks working in forensic labs. Right now, it is a free for all out there. Junk
science is everywhere. Ask Henry Lee, whose golden arches are everywhere.
What is striking about the NAS report is that the list of folks on the panel and the list of those who testified before it does not include Dr. Henry Lee or anyone, apparently, associated with the University of West Haven. It is as though the owl of Minerva flew right over Connecticut (OK. Obscure reference check: Wisdom.)
Listening to Karen the other night I foresaw a set of judicial proceedings in which evidence is simply mailed in by a state forensic lab. The tests will do all the talking. That should reassure, I suppose, but the sources of human error and bias in any test are ever present. Even in the Connecticut Forensic Laboratory. Don’t get too chummy with the state Karen. We need a truly independent set of forensic labs.
Reprinted courtest of the Connecticut Law Tribune.
Wednesday, March 18, 2009
99 Cents A Month? It's A Steal
Even though I own a bookstore, I spend far too much money each month on books. My wife and I are print addicts. We love reading. I've even gone so far as to purchase a Kindle from Amazon, which permits me to get eletronic versions of books on line.
Kindle also sells blogs. You purchase monthly access to them. I checked through the list of blogs offered last night and saw my alma mater, Crime and Federalism, on the list. For 99 cents a month, I can have it downloaded to my Kindle.
I am somewhat puzzled by this. Why would I purchase what I can get for free? I am able to download items on the Internet to my cell phone for free. Hence, should I ever need a quick jolt of opinion for free, all I need to do is whip out my phone.
It is not apparent to me that Mike, the author of Crime and Federalism, even knows that his cite is being offered for sale. Does he get a cut? Nine ninety cents a months is a steal. I suppose the question is, who is getting robbed?
Kindle also sells blogs. You purchase monthly access to them. I checked through the list of blogs offered last night and saw my alma mater, Crime and Federalism, on the list. For 99 cents a month, I can have it downloaded to my Kindle.
I am somewhat puzzled by this. Why would I purchase what I can get for free? I am able to download items on the Internet to my cell phone for free. Hence, should I ever need a quick jolt of opinion for free, all I need to do is whip out my phone.
It is not apparent to me that Mike, the author of Crime and Federalism, even knows that his cite is being offered for sale. Does he get a cut? Nine ninety cents a months is a steal. I suppose the question is, who is getting robbed?
Tuesday, March 17, 2009
Pro Se Tsunami Bearing Down On Courts
Reports are trickling in from around the country that the number of pro se cases is on the rise. Perhaps that is what it will take to make the courts and bar regulators understand what it is like to actually practice, rather than merely preach, the law.
Commentators blame the economy for the increase in self-representation. There's just less money and more trouble. Folks are turning to court unarmed with counsel far more often.
But I think there are other more subtle factors at work here as well. The law is late to adopt the informed consent model of ethics now long familiar to doctors. We as lawyers are required not simply to spot the issues in our clients lives and provide the best possible outcome. Many states have expanded the roles of lawyers to emphasize the task of counselor. We are required as never before to obtain informed consent not just about our grand strategic objectives, but about tactics as well. These new ethics rules make it more time consuming to represent a client. That means fees increase and the number of folks who can be served decreases.
Folks seeking a lawyer are suffering. It is often fear and anger that drives a person to a lawyer's door. Many people cope with these emotions well, but some do not. To paraphrase Aristotle, it takes widsom to know how to be angry at the right person, to the right degree and in the right manner. Many clients are pressed into dark, dark places by their woe. They can become unreasonable, if not impervious to reason. Forcing lawyers into the arms of anger will yield more lawyers' withdrawing from cases when their clients' objectives become repugnant or when the attorney-client relationship breaks down because the lawyers won't get and remain angry in just the right way to suit a client. Informed consent, simply put, will yield more pro se litigants.
One Connecticut judge recently had an epiphany as he surveyed the new pro se laden landscape: "It requires us to come with plain language forms, educational tools; requires judges to be a little more patient with self-represented litigants. It really hits the system in every direction you can think of." No sugar, Sherlock. Lawyers in the trenches have known this for the past few years.
It is far too easy to get a case into court. Payment of small filing fee does the trick. If you are broke enough, the fee can be waived. Then paper and fur flies. Lawyers most often are called in to make money managing this chaos. We are reluctant to place barriers of any sort at the courthouse door for fear that we violate a person's right of access to the courts. I wonder whether this pro se tsunami barreling down on the courts will change attitudes.
I have been on the verge of tears many times responding to question after question by folks who think they know what the law is because they've found a case on the Internet. Why can't they have what they want when they want in just the way they want it? Doesn't the Supreme Court say they should?
It takes years to acquire perspective in the law. In law school we were graded not so much on our ability to get the answers right but more on our ability to spot the issues that mattered. The law is a many forked tree; doctrine could easily have moved to the right or to the left in a given area of the law. The fact that it moved in one direction is most often not a matter of logic, but of the felt necessity of the time. You just can't explain that to a pro se bent by rage or fear, or to some clients.
Court officials swamped by pro se litigants? Good. Let's see what they can do with dark night's need.
Commentators blame the economy for the increase in self-representation. There's just less money and more trouble. Folks are turning to court unarmed with counsel far more often.
But I think there are other more subtle factors at work here as well. The law is late to adopt the informed consent model of ethics now long familiar to doctors. We as lawyers are required not simply to spot the issues in our clients lives and provide the best possible outcome. Many states have expanded the roles of lawyers to emphasize the task of counselor. We are required as never before to obtain informed consent not just about our grand strategic objectives, but about tactics as well. These new ethics rules make it more time consuming to represent a client. That means fees increase and the number of folks who can be served decreases.
Folks seeking a lawyer are suffering. It is often fear and anger that drives a person to a lawyer's door. Many people cope with these emotions well, but some do not. To paraphrase Aristotle, it takes widsom to know how to be angry at the right person, to the right degree and in the right manner. Many clients are pressed into dark, dark places by their woe. They can become unreasonable, if not impervious to reason. Forcing lawyers into the arms of anger will yield more lawyers' withdrawing from cases when their clients' objectives become repugnant or when the attorney-client relationship breaks down because the lawyers won't get and remain angry in just the right way to suit a client. Informed consent, simply put, will yield more pro se litigants.
One Connecticut judge recently had an epiphany as he surveyed the new pro se laden landscape: "It requires us to come with plain language forms, educational tools; requires judges to be a little more patient with self-represented litigants. It really hits the system in every direction you can think of." No sugar, Sherlock. Lawyers in the trenches have known this for the past few years.
It is far too easy to get a case into court. Payment of small filing fee does the trick. If you are broke enough, the fee can be waived. Then paper and fur flies. Lawyers most often are called in to make money managing this chaos. We are reluctant to place barriers of any sort at the courthouse door for fear that we violate a person's right of access to the courts. I wonder whether this pro se tsunami barreling down on the courts will change attitudes.
I have been on the verge of tears many times responding to question after question by folks who think they know what the law is because they've found a case on the Internet. Why can't they have what they want when they want in just the way they want it? Doesn't the Supreme Court say they should?
It takes years to acquire perspective in the law. In law school we were graded not so much on our ability to get the answers right but more on our ability to spot the issues that mattered. The law is a many forked tree; doctrine could easily have moved to the right or to the left in a given area of the law. The fact that it moved in one direction is most often not a matter of logic, but of the felt necessity of the time. You just can't explain that to a pro se bent by rage or fear, or to some clients.
Court officials swamped by pro se litigants? Good. Let's see what they can do with dark night's need.
Monday, March 16, 2009
Well ... Moby Dick Revisited
Some clients are more challenging than others. They can present issues you've never seen before, challenging you to be creative. Consider the following as an example.
In today's mail arrived a copy of a letter sent to a judge of the Superior Court by a client of ours in a criminal case. The fact that it has been sent to the court destroys the privilege. So let me share a version edited only to assure that anonymity of the sender and recipient. I will endeavor to leave spelling and punctuation as is.
"Hi Judge
You ... lie in the Court Room ... also [The Public Defender] He Also lie on ... At the Bond, Hearing ... He No Fucking Good Also Judge I will still love to Eat your pussy out And Eat your Ass out Bad Judge I have a very big long Dick For your Ass Hole And your pussy I will like to Fuck you up your White, Ass Eat out your butt Hole Fuck in the Mouth Come in see my Big long Dick Head all for you Judge Eat out the pussy Eat your Ass Come in Suck my big Black Dick...."
One can only hope for an acquittal in this case, or, in the alternative, for a sentencing judge with a ribald sense of humor.
In today's mail arrived a copy of a letter sent to a judge of the Superior Court by a client of ours in a criminal case. The fact that it has been sent to the court destroys the privilege. So let me share a version edited only to assure that anonymity of the sender and recipient. I will endeavor to leave spelling and punctuation as is.
"Hi Judge
You ... lie in the Court Room ... also [The Public Defender] He Also lie on ... At the Bond, Hearing ... He No Fucking Good Also Judge I will still love to Eat your pussy out And Eat your Ass out Bad Judge I have a very big long Dick For your Ass Hole And your pussy I will like to Fuck you up your White, Ass Eat out your butt Hole Fuck in the Mouth Come in see my Big long Dick Head all for you Judge Eat out the pussy Eat your Ass Come in Suck my big Black Dick...."
One can only hope for an acquittal in this case, or, in the alternative, for a sentencing judge with a ribald sense of humor.
Mirror, Mirror On The Net ...
Yesterday's New York Times carried what journalists call a "thumb sucker" on foreign reporting. To those unfamiliar with the genre, that is a piece of navel gazing cut loose from any hard news peg. Call it a floating reflection on whatever the writer thinks of merit. See, These Days, No Reporting Behind a Nation's Back," New York Times, March 15, 2009).
The piece is about how the Internet has changed foreign reporting. Gone are the days when a reporter would file a piece, wait weeks for it to appear in print in his host country, and then move on to another topic. The Internet makes each story instantaneously accessible everywhere. This has changed reporting, perhaps for the worse.
One paragraph struck me to the core. It was about how the Internet can dumb down reporting and writing. Why? The Internet is a mirror: it is hard, sometimes, to avoid your own reflection.
"[I]n this new world it is easy to become addicted to the debate one stirs. The 'most e-mailed' lists, the blogs, the online comments -- these can tempt one to write what draws the most praise or at least the most noise." It can also become a source of great distraction, yielding a hermetically sealed world of fragmented images.
I have been writing opinion pieces for the past eight and one-half years. I write a weekly column for the Connecticut Law Tribune. Since early 2005, I've been on and off the blawgosphere. One rule I've learned the hard way is to avoid entangling debates with other bloggers.
When I first started writing columns for a legal newspaper, the reaction was immediate and powerful. There were nasty letters to the editor; members of the paper's advisory board resigned in protest; and, the state's judiciary cancelled subscriptions to the paper in the state's law libraries. I took a perverse sort of pleasure in all this. But when I read the comments people wrote, I was invariably hurt, angered or mystified. I'd find myself writing responses to them. And in so doing, I'd lose my focus; my voice became a mere bark. I resolved early on not to read letters and comments. My simple rule is to thank people for reading and move on.
It is a rule I did not follow as a blogger, and it led me to leave the blawgosphere for a spell. I developed a fascination with the number of folks who read my page, and I started to wonder whether I could increase readership. I noticed that some pages linked to scores of other pages and engaged in something like a running debate with each person writing comments. I tossed a few bombs into the ether, provoking debates about topics in response to what I read elsewhere. The result was mere tedium for me, and I suspect, my readers. Indeed, one churlish cur took the time to figure out I Google my name regularly; he reported this as if it were a revelation.
People write for all sorts of reason. Some want to be popular. Others write with the hope of changing the opinion of others. I write because I enjoy expression and find the discipline bracing: If I focus on something for a spell, I find the object no longer enslaves. Once placed in perspective I am freed from thralldom and remain master of my own small realm.
From time to time, I am accused of being a bad sport on the Internet. I don't link to others enough. I don't respond to comments. I am not a good citizen. Guilty as charged, I say. I don't play well with others. I know that, and now, thanks to the Times, I know the fault is not entirely a shortcoming peculiar to me.
O
The piece is about how the Internet has changed foreign reporting. Gone are the days when a reporter would file a piece, wait weeks for it to appear in print in his host country, and then move on to another topic. The Internet makes each story instantaneously accessible everywhere. This has changed reporting, perhaps for the worse.
One paragraph struck me to the core. It was about how the Internet can dumb down reporting and writing. Why? The Internet is a mirror: it is hard, sometimes, to avoid your own reflection.
"[I]n this new world it is easy to become addicted to the debate one stirs. The 'most e-mailed' lists, the blogs, the online comments -- these can tempt one to write what draws the most praise or at least the most noise." It can also become a source of great distraction, yielding a hermetically sealed world of fragmented images.
I have been writing opinion pieces for the past eight and one-half years. I write a weekly column for the Connecticut Law Tribune. Since early 2005, I've been on and off the blawgosphere. One rule I've learned the hard way is to avoid entangling debates with other bloggers.
When I first started writing columns for a legal newspaper, the reaction was immediate and powerful. There were nasty letters to the editor; members of the paper's advisory board resigned in protest; and, the state's judiciary cancelled subscriptions to the paper in the state's law libraries. I took a perverse sort of pleasure in all this. But when I read the comments people wrote, I was invariably hurt, angered or mystified. I'd find myself writing responses to them. And in so doing, I'd lose my focus; my voice became a mere bark. I resolved early on not to read letters and comments. My simple rule is to thank people for reading and move on.
It is a rule I did not follow as a blogger, and it led me to leave the blawgosphere for a spell. I developed a fascination with the number of folks who read my page, and I started to wonder whether I could increase readership. I noticed that some pages linked to scores of other pages and engaged in something like a running debate with each person writing comments. I tossed a few bombs into the ether, provoking debates about topics in response to what I read elsewhere. The result was mere tedium for me, and I suspect, my readers. Indeed, one churlish cur took the time to figure out I Google my name regularly; he reported this as if it were a revelation.
People write for all sorts of reason. Some want to be popular. Others write with the hope of changing the opinion of others. I write because I enjoy expression and find the discipline bracing: If I focus on something for a spell, I find the object no longer enslaves. Once placed in perspective I am freed from thralldom and remain master of my own small realm.
From time to time, I am accused of being a bad sport on the Internet. I don't link to others enough. I don't respond to comments. I am not a good citizen. Guilty as charged, I say. I don't play well with others. I know that, and now, thanks to the Times, I know the fault is not entirely a shortcoming peculiar to me.
O
Choi's Person of Interest: Who Isn't Guilty?
Mere presence is a common defense in criminal cases. Thus, although you were standing next to the person who eventually pulled a gun out and robbed the bank, you are not a coc0nspirator unless you and the robber actually conceived of the heist. You were merely present when another person acted.
But tell that to a law enforcement agent. Sometimes the mere presence of an investigator can turn even the firmest bowels to water. Why is that? What transforms an innocent person into a self-doubting mope?
Susan Choi's, A Person of Interest, provides one sort of answer: We are all guilty of something. Like seedlings in spring we merely await warmth and water to blossom into self-hatred.
Choi's work is not the vacant sort of existentialism that might support such a proposition. Her prose are dense, and her protagonist is a complete human being. He is a professor of mathematics at a midwestern college nearing the end of a ho hum career. As he sits in his office one day steeped in resentment of a colleague who has found fame, fortune and popularity serving the new masters of computer science, a blast throws him to the floor. A bomb has gone off, and it has exploded in the office in the office of the professor's hated rival.
In that instant, the professor became a person of interest to federal investigators. His life is upended. Alive to the deeper rythyms of his life, the professor knows he had no role in sending the bomb, but his mind is now alive and in search of answers. Like the FBI agent who pursues him, the professor plots motive, opportunity and circumstantial evidence to arrive at the identity of the killer. The feds do, too. Both are looking for a killer and both have different suspects in mind.
But I do injustice to the book portraying it as a mere thriller. Choi's prose are as fine as silk. And her rendering of the so-called guilty mind profound. The professor feels guilt for something he has not done. He comes to doubt himself and this doubt draws watching eyes intent on solving a crime. "Even he felt a sick-making upsurge of doubt; he had been in a room right next door, and the merciless truth of these words seemed to press on him lurid ideas that were not true at all. Was he a sleepwalking bomber? A servant of Satan? Why was his own innocence not a plain fact for him, but elusive and fragile, a condition requiring caretaking he couldn't provide?"
Choi doesn't provide the answer. Good fiction does not preach. She writes lovingly of a man alone, who, in a crisis, learns something about love and about trust. Choi's a writer worth reading.
But tell that to a law enforcement agent. Sometimes the mere presence of an investigator can turn even the firmest bowels to water. Why is that? What transforms an innocent person into a self-doubting mope?
Susan Choi's, A Person of Interest, provides one sort of answer: We are all guilty of something. Like seedlings in spring we merely await warmth and water to blossom into self-hatred.
Choi's work is not the vacant sort of existentialism that might support such a proposition. Her prose are dense, and her protagonist is a complete human being. He is a professor of mathematics at a midwestern college nearing the end of a ho hum career. As he sits in his office one day steeped in resentment of a colleague who has found fame, fortune and popularity serving the new masters of computer science, a blast throws him to the floor. A bomb has gone off, and it has exploded in the office in the office of the professor's hated rival.
In that instant, the professor became a person of interest to federal investigators. His life is upended. Alive to the deeper rythyms of his life, the professor knows he had no role in sending the bomb, but his mind is now alive and in search of answers. Like the FBI agent who pursues him, the professor plots motive, opportunity and circumstantial evidence to arrive at the identity of the killer. The feds do, too. Both are looking for a killer and both have different suspects in mind.
But I do injustice to the book portraying it as a mere thriller. Choi's prose are as fine as silk. And her rendering of the so-called guilty mind profound. The professor feels guilt for something he has not done. He comes to doubt himself and this doubt draws watching eyes intent on solving a crime. "Even he felt a sick-making upsurge of doubt; he had been in a room right next door, and the merciless truth of these words seemed to press on him lurid ideas that were not true at all. Was he a sleepwalking bomber? A servant of Satan? Why was his own innocence not a plain fact for him, but elusive and fragile, a condition requiring caretaking he couldn't provide?"
Choi doesn't provide the answer. Good fiction does not preach. She writes lovingly of a man alone, who, in a crisis, learns something about love and about trust. Choi's a writer worth reading.
Sunday, March 15, 2009
AIG: Bonuses For Bullshit?
Did I read that right? The federal government out and out gave American International Group $170 billion to keep from folding, and the company now plans to give $160 million in bonuses? I understand the need to stimulate the economy, but tossing lard-drenched oats to the swine makes no sense. Don't we ever make the pigs squeal for their supper?
The news was above the fold in today's New York Times. My wife and I read the paper together on Sunday mornings before we each head off to work. Reading today's paper made we wonder why we were rushing off to work on a sunny Sunday morning. Ought we, too, to simply mail it in and expect a federal check?
Edward M. Libby, the head porker at AIG justified the bonuses on contractual grounds. The company made commitments after all.
Listen to Libby: "We cannot attract the best and the brightest talent to lead and staff the A.I.G. businesses -- which are now being operated principally on behalf of American taxpayers -- if employees believe their compensation is subject to continued and arbitrary adjustment by the U.S. Treasury." I am beginning to rethink whether balcony diving ought after all to be the fate of those who cannot face their failures.
It is not enough that the investing class snookered us into behaving as though we believed we really could get something for nothing. Almost all of us bought into the real estate game. Living beyond our means became a national pastime. And the likes of Libby were giddy serving our need for ready credit.
But that swindle was nothing as compared to the simpering that yielded a federal bailout of bankers who behaved like drunken nabobs managing monopoly money. We kept AIG and others from sinking to save ourselves, we said. We're pouring billions into a bailout to beat all bailouts. And there is no end in sight. We need ready credit, we're told, to keep hope alive.
Whose hope? The slimy shucksters who bobbed for our dollars by promising golden apples at the bottom of every barrel? Why are any of the "best and brightest" who waltzed we trusting suckers to the brink of disaster still working? Bonuses for this crowd? They're lucky they don't get bullets instead.
Someone ought to make Joseph Schumpeter's Capitalism, Socialism and Democracy, published in 1942, required reading for Libby and his pals. Schumpeter believed that markets were self-correcting. Dead weight, old and tired industries, and, I suspect, financiers who can't stop dreaming of easy money were sometimes pushed aside in a process known as "creative destruction." Sure, it hurts. But pain is a companion to growth; ask any teenager.
We're insulating the likes of Libby from the consequences of their failure. They came to us and asked for easy cash. We gave it to them. When they mismanaged that, they then cried poor to Uncle Same. Obligingly, he's now anteing up. But the fact remains that the money being spent today is our children's, and their children's. We're paying a fool's mortgage.
It may well be that a Keynesian response to an economic slowdown is appropriate. I am no economist. But when Libby and company comes simpering to the door saying that they need to honor contracts requiring bonuses, we are well within our bounds to question whether there is any reason in the world we ought not let these glad-handing hucksters slide straight into bankruptcy. They can join the millions of Americans who have lost homes, fortune and future to a climate of greed whipped up the lippy Mr. Libby and friends.
The best and the brightest? Yeah, as in con men.
The news was above the fold in today's New York Times. My wife and I read the paper together on Sunday mornings before we each head off to work. Reading today's paper made we wonder why we were rushing off to work on a sunny Sunday morning. Ought we, too, to simply mail it in and expect a federal check?
Edward M. Libby, the head porker at AIG justified the bonuses on contractual grounds. The company made commitments after all.
Listen to Libby: "We cannot attract the best and the brightest talent to lead and staff the A.I.G. businesses -- which are now being operated principally on behalf of American taxpayers -- if employees believe their compensation is subject to continued and arbitrary adjustment by the U.S. Treasury." I am beginning to rethink whether balcony diving ought after all to be the fate of those who cannot face their failures.
It is not enough that the investing class snookered us into behaving as though we believed we really could get something for nothing. Almost all of us bought into the real estate game. Living beyond our means became a national pastime. And the likes of Libby were giddy serving our need for ready credit.
But that swindle was nothing as compared to the simpering that yielded a federal bailout of bankers who behaved like drunken nabobs managing monopoly money. We kept AIG and others from sinking to save ourselves, we said. We're pouring billions into a bailout to beat all bailouts. And there is no end in sight. We need ready credit, we're told, to keep hope alive.
Whose hope? The slimy shucksters who bobbed for our dollars by promising golden apples at the bottom of every barrel? Why are any of the "best and brightest" who waltzed we trusting suckers to the brink of disaster still working? Bonuses for this crowd? They're lucky they don't get bullets instead.
Someone ought to make Joseph Schumpeter's Capitalism, Socialism and Democracy, published in 1942, required reading for Libby and his pals. Schumpeter believed that markets were self-correcting. Dead weight, old and tired industries, and, I suspect, financiers who can't stop dreaming of easy money were sometimes pushed aside in a process known as "creative destruction." Sure, it hurts. But pain is a companion to growth; ask any teenager.
We're insulating the likes of Libby from the consequences of their failure. They came to us and asked for easy cash. We gave it to them. When they mismanaged that, they then cried poor to Uncle Same. Obligingly, he's now anteing up. But the fact remains that the money being spent today is our children's, and their children's. We're paying a fool's mortgage.
It may well be that a Keynesian response to an economic slowdown is appropriate. I am no economist. But when Libby and company comes simpering to the door saying that they need to honor contracts requiring bonuses, we are well within our bounds to question whether there is any reason in the world we ought not let these glad-handing hucksters slide straight into bankruptcy. They can join the millions of Americans who have lost homes, fortune and future to a climate of greed whipped up the lippy Mr. Libby and friends.
The best and the brightest? Yeah, as in con men.
Saturday, March 14, 2009
What Is Hell? Listen To The Choir
I haven't darkened the door of a church for many, many years. The following snippets from church bulletins suggest that I am missing something. After all, isn't laughter good for the soul?
Hat tip: Mretramp2
The Fasting & Prayer Conference includes meals.
--------------------------
The sermon this morning: 'Jesus Walks on the Water.' The sermon tonight: 'Searching for Jesus.'
--------------------------
Ladies, don't forget the rummage sale. It's a chance to get rid of those things not worth keeping around the house. Bring your husbands.
--------------------------
Remember in prayer the many who are sick of our community. Smile at someone who is hard to love. Say 'Hell' to someone who doesn't care much about you.
--------------------------
Don't let worry kill you off - let the Church help.
--------------------------
Miss Charlene Mason sang 'I will not pass this way again,' giving obvious pleasure to the congregation.
--------------------------
For those of you who have children and don't know it, we have a nursery downstairs.
--------------------------
Next Thursday there will be tryouts for the choir. They need all the help they can get.
--------------------------
Irving Benson and Jessie Carter were married; on October 24 in the church. So ends a friendship that began in their school days.
--------------------------
A bean supper will be held on Tuesday evening in the church hall. Music will follow.
--------------------------
At the evening service tonight, the sermon topic will be 'What Is Hell?' Come early and listen to our choir practice.
--------------------------
Eight new choir robes are currently needed due to the addition of several new members and to the deterioration of some older ones.
--------------------------
Scouts are saving aluminum cans, bottles and other items to be recycled. Proceeds will be used to cripple children.
--------------------------
Please place your donation in the envelope along with the deceased person you want remembered.
--------------------------
The church will host an evening of fine dining, super entertainment and gracious hostility.
--------------------------
Potluck supper Sunday at 5:00 PM - prayer and medication to follow.
--------------------------
The ladies of the Church have cast off clothing of every kind. They may be seen in the basement on Friday afternoon.
--------------------------
This evening at 7 PM there will be a hymn singing in the park across from the Church. Bring a blanket and come prepared to sin.
--------------------------
Ladies Bible Study will be held Thursday morning at 10 AM. All ladies are invited to lunch in the Fellowship Hall after the B. S. Is done.
--------------------------
The pastor would appreciate it if the ladies of the Congregation would lend him their electric girdles for the pancake breakfast next Sunday.
--------------------------
Low Self Esteem Support Group will meet Thursday at 7 PM. Please use the back door.
--------------------------
The eighth-graders will be presenting Shakespeare's Hamlet in the Church basement Friday at 7 PM. The congregation is invited to attend this tragedy.
-------------------------
Weight Watchers will meet at 7 PM at the First Presbyterian Church. Please use large double door at the side entrance.
--------------------------
The Associate Minister unveiled the church's new campaign slogan last Sunday: 'I Upped My Pledge - Up Yours.'
Hat tip: Mretramp2
The Fasting & Prayer Conference includes meals.
--------------------------
The sermon this morning: 'Jesus Walks on the Water.' The sermon tonight: 'Searching for Jesus.'
--------------------------
Ladies, don't forget the rummage sale. It's a chance to get rid of those things not worth keeping around the house. Bring your husbands.
--------------------------
Remember in prayer the many who are sick of our community. Smile at someone who is hard to love. Say 'Hell' to someone who doesn't care much about you.
--------------------------
Don't let worry kill you off - let the Church help.
--------------------------
Miss Charlene Mason sang 'I will not pass this way again,' giving obvious pleasure to the congregation.
--------------------------
For those of you who have children and don't know it, we have a nursery downstairs.
--------------------------
Next Thursday there will be tryouts for the choir. They need all the help they can get.
--------------------------
Irving Benson and Jessie Carter were married; on October 24 in the church. So ends a friendship that began in their school days.
--------------------------
A bean supper will be held on Tuesday evening in the church hall. Music will follow.
--------------------------
At the evening service tonight, the sermon topic will be 'What Is Hell?' Come early and listen to our choir practice.
--------------------------
Eight new choir robes are currently needed due to the addition of several new members and to the deterioration of some older ones.
--------------------------
Scouts are saving aluminum cans, bottles and other items to be recycled. Proceeds will be used to cripple children.
--------------------------
Please place your donation in the envelope along with the deceased person you want remembered.
--------------------------
The church will host an evening of fine dining, super entertainment and gracious hostility.
--------------------------
Potluck supper Sunday at 5:00 PM - prayer and medication to follow.
--------------------------
The ladies of the Church have cast off clothing of every kind. They may be seen in the basement on Friday afternoon.
--------------------------
This evening at 7 PM there will be a hymn singing in the park across from the Church. Bring a blanket and come prepared to sin.
--------------------------
Ladies Bible Study will be held Thursday morning at 10 AM. All ladies are invited to lunch in the Fellowship Hall after the B. S. Is done.
--------------------------
The pastor would appreciate it if the ladies of the Congregation would lend him their electric girdles for the pancake breakfast next Sunday.
--------------------------
Low Self Esteem Support Group will meet Thursday at 7 PM. Please use the back door.
--------------------------
The eighth-graders will be presenting Shakespeare's Hamlet in the Church basement Friday at 7 PM. The congregation is invited to attend this tragedy.
-------------------------
Weight Watchers will meet at 7 PM at the First Presbyterian Church. Please use large double door at the side entrance.
--------------------------
The Associate Minister unveiled the church's new campaign slogan last Sunday: 'I Upped My Pledge - Up Yours.'
Friday, March 13, 2009
Bernie's Lucky Break
I can't quite shake the feeling that Bernie Madoff is the lucky one. He's been indicted; how he has pleaded guilty and has been whisked off to federal custody while awaiting sentencing. He will no doubt be sentenced to a long period of incarceration. He's free, in a way Epictetus would have understood. The rest of us are still tethered to lines he helped fasten around our necks.
Epictetus was born at about the time Paul was writing letters to folks all over Asia Minor. He was a stoic philosopher who taught that a life lived according to reason could yield a sparing sort of happiness or eudamonia. What the fates present, we must accept. Living within the limits, what we might call the means presented by reason, is the key to a good life.
Epictetus is believed by some to have been born a slave. Central to his teaching is that accidents of fortune should have no bearing on how the wise man lives.
Madoff can learn wisdom in a prison cell. He'll get three hots and a cot, health care, access to reading material and companions no better, and certainly no worse, than the folks with whom he rubbed elbows on Wall Street. In an uncanny way, he is now free: free from the fear, the dread, and the anxiety that came of living a lie he knew would end someday. "I knew what I was doing was wrong, indeed criminal," Madoff told the court. "When I began the Ponzi scheme, I believed it would end shortly and I would be able to extricate myself and my clients."
So much for the waking nightmare of living a lie.
The rest of us aren't nearly so lucky. Madoff made off with the money of folks who were at bottom no different than him. We all wanted, and perhaps still want, something for nothing. Madoff brokered a dream many investors were desparate to sell. They, alas, are left holding the bag, with no housing, food, medical care and safety provided to them. The folks who relied on Madoff get the grim fool's satisfaction of watching Madoff walk away in handcuffs; who will ever set those who lost life's savings free from the chains of debt they acquired trying to be just like Bernie?
I watch with a gathering desperation the talk of new tough prosecution of white collar crimes. We're going to nail bankers, brokers and the army of Rolex-wearing glad-handers who read Tom Wolfe's Bonfire of the Vanities and missed the satire. We'll rage, stamp our feet in righteous indignation, and point plump fingers of blame at all those who told us it was safe to grow fat and sassy. But we will not be freed ourselves.
"Did we get answers? Not all all," said George Nierenberg, who attended the change of plea. His family lost everything as a result of bad investmentsto Madoff. Mr. Nierenberg is a fool. The answers are in the mirror. We made Madoff. He was just better at the game than the rest of us. So we threw our money at him, closed our eyes, and kept our fingers crossed. So long as something followed nothing no one asked questions. We liked it that way.
And then one day a bubble burst, and a sea of bad debt flooded the land. Those who juggled the bubbles got arrested, and thrown in prison. Folks at the bottom get a pass and a shot at a new life through bankruptcy. The middle class stumbles along, tethered to bad debt for many years to come.
Bernie is lucky. His spirit is free. Sure, he's a in a cell now. But as Epictetus would say, his spirit is his own. No creditor calling him for repayment, and no sleepless nights worrying about how to make ends meet. Bernie's in a seemless circle and has a shot at redemption denied to those of us who sufffered a mere intermediate sort of greed.
Epictetus was born at about the time Paul was writing letters to folks all over Asia Minor. He was a stoic philosopher who taught that a life lived according to reason could yield a sparing sort of happiness or eudamonia. What the fates present, we must accept. Living within the limits, what we might call the means presented by reason, is the key to a good life.
Epictetus is believed by some to have been born a slave. Central to his teaching is that accidents of fortune should have no bearing on how the wise man lives.
Madoff can learn wisdom in a prison cell. He'll get three hots and a cot, health care, access to reading material and companions no better, and certainly no worse, than the folks with whom he rubbed elbows on Wall Street. In an uncanny way, he is now free: free from the fear, the dread, and the anxiety that came of living a lie he knew would end someday. "I knew what I was doing was wrong, indeed criminal," Madoff told the court. "When I began the Ponzi scheme, I believed it would end shortly and I would be able to extricate myself and my clients."
So much for the waking nightmare of living a lie.
The rest of us aren't nearly so lucky. Madoff made off with the money of folks who were at bottom no different than him. We all wanted, and perhaps still want, something for nothing. Madoff brokered a dream many investors were desparate to sell. They, alas, are left holding the bag, with no housing, food, medical care and safety provided to them. The folks who relied on Madoff get the grim fool's satisfaction of watching Madoff walk away in handcuffs; who will ever set those who lost life's savings free from the chains of debt they acquired trying to be just like Bernie?
I watch with a gathering desperation the talk of new tough prosecution of white collar crimes. We're going to nail bankers, brokers and the army of Rolex-wearing glad-handers who read Tom Wolfe's Bonfire of the Vanities and missed the satire. We'll rage, stamp our feet in righteous indignation, and point plump fingers of blame at all those who told us it was safe to grow fat and sassy. But we will not be freed ourselves.
"Did we get answers? Not all all," said George Nierenberg, who attended the change of plea. His family lost everything as a result of bad investmentsto Madoff. Mr. Nierenberg is a fool. The answers are in the mirror. We made Madoff. He was just better at the game than the rest of us. So we threw our money at him, closed our eyes, and kept our fingers crossed. So long as something followed nothing no one asked questions. We liked it that way.
And then one day a bubble burst, and a sea of bad debt flooded the land. Those who juggled the bubbles got arrested, and thrown in prison. Folks at the bottom get a pass and a shot at a new life through bankruptcy. The middle class stumbles along, tethered to bad debt for many years to come.
Bernie is lucky. His spirit is free. Sure, he's a in a cell now. But as Epictetus would say, his spirit is his own. No creditor calling him for repayment, and no sleepless nights worrying about how to make ends meet. Bernie's in a seemless circle and has a shot at redemption denied to those of us who sufffered a mere intermediate sort of greed.
Thursday, March 12, 2009
The Next Wave Of "Zero Tolerance"
Everyone is looking for ways to cut government spending. But few seem willing to consider where truly great savings can be realized: the criminal justice system. At a cost of $30,000 per year to house an inmate, one would think that lawmakers would be keen on ways to empty beds, not fill them.
But the rush to transform the nation into a string of penal colonies rushes along. The New York Times reports the latest fad in law enforcement: White collar crime. Let’s lock up the bankers, seems to be the new cry. It has all the appeal of a cigarette at dawn. Something to calm the nerves along the gasping trot to death’s door.
After a meeting with the new United States Attorney General, Richard Blumenthal chirped: "It’s clear that he and other top-level members of the Obama administration want to seize the opportunity and send a message of zero-tolerance for mortgage fraud."
Zero tolerance? Haven’t we heard that before?
We wanted zero tolerance for narcotics sales. So we cracked down, built prisons, lengthened sentences for sale and possession of various drugs, and then set about filling prisons with addicts. The war on drugs hasn’t been much of a war at all. Addiction rates are still high. Kids are still making money hustling need on street corners. Even the prosecutors seem bored by at all.
And then we announced a new zero tolerance policy, this one directed at child sex. It seems as though hardly a day passes in our office without someone calling about a recent arrest. They touched a child, looked at a dirty picture of a child, been stung trying to meet a child on line. New laws require stiff penalties for these crimes. Where are we going to send all of these folks whose desires have led them astray?
On the horizon? Bankers and mortgage brokers.
I can hardly wait. I’ve long envied some of the gray beards of the Connecticut criminal defense bar. We have a cadre of lawyers in their late 60s and early 70s who earn top dollar barking about how they’ll fight, fight, fight. Yet when the ink dries on many a retainer the client finds he’s bought one of the most expensive guilty pleas in the state. I suspect a new rush of white collar cases will drive fees up.
In my mind’s eye, I see a new penal institution in every town. Each has seven wings. One is called lust, the other greed, the other anger. We’ll sort the convicted by the deadly sin that led to their undoing.
But there is nothing divine about such a comedy. It is expensive to keep churning out new batches of criminals. We need expensive law enforcement agencies. We need lots of prosecutors. We need new and better courthouses. And lots of lawyers, too. There is something for everyone in this cornucopia of crime. We prosecute, defend, convict, imprison and supervise, and to what end?
I have a proposal. Enact a law requiring every crime in the penal code to be reassessed each decade. Let lawmakers do an assessment of the need for the crime and the expense of enforcing it. In some cases, the assessment will be simple. Murder, I suspect, will remain year by year. But why not require lawmakers to look at statistics on a regular basis? How many convicted murderers are incarcerated? What is the length of each sentence? The expected cost for each inmate per year? Are sentences too long?
In some cases, the results will cause reassessment. Do we really want to send a young man to prison for a couple of years merely for the crime of looking at lewd pictures of children? Does it make sense to lock up a drug addict? And do bankers belong behind bars when all they did was give us what we wanted?
Don’t get me wrong. I am all for the penal code. It keeps me and my office busy. But I sometimes wonder whether I’d be as usefully employed rearranging deck chairs on a sinking ship.
Reprinted courtesy of the Connecticut Law Tribune.
But the rush to transform the nation into a string of penal colonies rushes along. The New York Times reports the latest fad in law enforcement: White collar crime. Let’s lock up the bankers, seems to be the new cry. It has all the appeal of a cigarette at dawn. Something to calm the nerves along the gasping trot to death’s door.
After a meeting with the new United States Attorney General, Richard Blumenthal chirped: "It’s clear that he and other top-level members of the Obama administration want to seize the opportunity and send a message of zero-tolerance for mortgage fraud."
Zero tolerance? Haven’t we heard that before?
We wanted zero tolerance for narcotics sales. So we cracked down, built prisons, lengthened sentences for sale and possession of various drugs, and then set about filling prisons with addicts. The war on drugs hasn’t been much of a war at all. Addiction rates are still high. Kids are still making money hustling need on street corners. Even the prosecutors seem bored by at all.
And then we announced a new zero tolerance policy, this one directed at child sex. It seems as though hardly a day passes in our office without someone calling about a recent arrest. They touched a child, looked at a dirty picture of a child, been stung trying to meet a child on line. New laws require stiff penalties for these crimes. Where are we going to send all of these folks whose desires have led them astray?
On the horizon? Bankers and mortgage brokers.
I can hardly wait. I’ve long envied some of the gray beards of the Connecticut criminal defense bar. We have a cadre of lawyers in their late 60s and early 70s who earn top dollar barking about how they’ll fight, fight, fight. Yet when the ink dries on many a retainer the client finds he’s bought one of the most expensive guilty pleas in the state. I suspect a new rush of white collar cases will drive fees up.
In my mind’s eye, I see a new penal institution in every town. Each has seven wings. One is called lust, the other greed, the other anger. We’ll sort the convicted by the deadly sin that led to their undoing.
But there is nothing divine about such a comedy. It is expensive to keep churning out new batches of criminals. We need expensive law enforcement agencies. We need lots of prosecutors. We need new and better courthouses. And lots of lawyers, too. There is something for everyone in this cornucopia of crime. We prosecute, defend, convict, imprison and supervise, and to what end?
I have a proposal. Enact a law requiring every crime in the penal code to be reassessed each decade. Let lawmakers do an assessment of the need for the crime and the expense of enforcing it. In some cases, the assessment will be simple. Murder, I suspect, will remain year by year. But why not require lawmakers to look at statistics on a regular basis? How many convicted murderers are incarcerated? What is the length of each sentence? The expected cost for each inmate per year? Are sentences too long?
In some cases, the results will cause reassessment. Do we really want to send a young man to prison for a couple of years merely for the crime of looking at lewd pictures of children? Does it make sense to lock up a drug addict? And do bankers belong behind bars when all they did was give us what we wanted?
Don’t get me wrong. I am all for the penal code. It keeps me and my office busy. But I sometimes wonder whether I’d be as usefully employed rearranging deck chairs on a sinking ship.
Reprinted courtesy of the Connecticut Law Tribune.
Wednesday, March 11, 2009
Hussle, Bustle and Jive
Call it a rump family reunion. Two of my three children met my wife and I in New York City Monday night. We spent yesterday roaming the streets and seeing the sights. It was part orientation, as my youngest begins medical school in the city in July.
"Do you hear that?" I said to my wife. She stopped and was attentive.
"Yes," she said. "What is it?"
There was a gentle roaring sound, barely distinguishable from the city's midday gurgle. We were standing a block from the New York Stock Exchange.
"That's the bottom being sucked out of the American economy," I grinned.
But yesterday was a good day on the market. It climbed nearly six percent. We wanted to see the market in action so we walked over to the exchange. A security guard barred entrance. It turns out there is no public access to the exchange, no gallery from which you can stand and watch your IRA vanish. Odd, isn't it? The market rises, falls, tumbles and soars and all we can do is stand outside the building and wait for signs and portents. Oz, the College of Cardinals, the Exchange.
One cabbied wanted to talk about Bernie Madoff. What sentence would he get? The man is a pirate. He ran off with billions. And now his wife is trying to hide some of the money as she dumps him. The cabbie was enraged, somehow. I doubt he lost a dime to Madoff.
As I stood outside the New York Stock Exchange I did not feel anger, fear or anything other than mystification. One year ago, my IRA was fat and happy; today it is not. The market made off with the money, I suppose. At least Madoff did not make off with my funds.
Today the city is a blur and I am back at home. It is quiet here. No neighbors within sight. Birds chirping, and the ground thawing, struggling to shake off a tough winter. Today is a gray sort of day, nature indecisive and perhaps overwhelmed with all the choices it has: Snow, Sun, spring, winter? Anything is possible.
But at least here the concept of value is not quite extinguished. I know what it takes to mend a fence or clean a chicken coop. I have a given quantum of energy I can pour into a project. I make choices here about how to spend limited capital. That is foreign to New York and its hussle, bustle and jive. I am glad to be back home.
"Do you hear that?" I said to my wife. She stopped and was attentive.
"Yes," she said. "What is it?"
There was a gentle roaring sound, barely distinguishable from the city's midday gurgle. We were standing a block from the New York Stock Exchange.
"That's the bottom being sucked out of the American economy," I grinned.
But yesterday was a good day on the market. It climbed nearly six percent. We wanted to see the market in action so we walked over to the exchange. A security guard barred entrance. It turns out there is no public access to the exchange, no gallery from which you can stand and watch your IRA vanish. Odd, isn't it? The market rises, falls, tumbles and soars and all we can do is stand outside the building and wait for signs and portents. Oz, the College of Cardinals, the Exchange.
One cabbied wanted to talk about Bernie Madoff. What sentence would he get? The man is a pirate. He ran off with billions. And now his wife is trying to hide some of the money as she dumps him. The cabbie was enraged, somehow. I doubt he lost a dime to Madoff.
As I stood outside the New York Stock Exchange I did not feel anger, fear or anything other than mystification. One year ago, my IRA was fat and happy; today it is not. The market made off with the money, I suppose. At least Madoff did not make off with my funds.
Today the city is a blur and I am back at home. It is quiet here. No neighbors within sight. Birds chirping, and the ground thawing, struggling to shake off a tough winter. Today is a gray sort of day, nature indecisive and perhaps overwhelmed with all the choices it has: Snow, Sun, spring, winter? Anything is possible.
But at least here the concept of value is not quite extinguished. I know what it takes to mend a fence or clean a chicken coop. I have a given quantum of energy I can pour into a project. I make choices here about how to spend limited capital. That is foreign to New York and its hussle, bustle and jive. I am glad to be back home.
Monday, March 9, 2009
Client Security Fund Raided. No One Cares
Last week, I reported on plans to raid Connecticut's Client Security Fund. I wondered whether the judiciary would do something to prevent what amounted to a theft. Apparently, the ink has already dried on legislation seizing the funds. Should the judicial branch fight this transfer, it will now do so in an effort to have money returned, and to prevent future raids in years to come.
Gov. Jodi Rell's budget called for seizure of these monies as part of her deficit reduction plan. Never mind that the money was held in trust. Never mind that the funds are under the control of the judicial branch. Never mind that the monies do not come from the general fund. The governor wanted cash, and she wanted it quick. The Legislature obliged the governor.
Late last week, lawmakers amended a bill, adding language to seize the funds. The very next day, the bill moves immediately to the House floor, where it is passed without any public comment whatsoever. A simple wham, bam, thank you ma'am. Early in the morning on the very next day, the Senate approves the measure, again without debate or public comment.
This was as graceful as a gunpoint stick up at an ATM.
The Client Security Fund is generated by an assessment 0n lawyers administered by the judicial branch. The fund is governed by a volunteer board. Funds are to be used to reimburse clients who have been defrauded by lawyers and to assist lawyers who succumb to drug and alcohol abuse. These are not monies generated by the legislative or executive branch. The monies are held in trust.
Apparently, this is just the beginning. The legislation permits immediate seizure of $2 million, with an invitation to come raid the fund again when the coffers are bare.
I am told that heads are spinning in the judiciary. They ought to be. But we need more than spinning heads. How about litigation designed to challenge whether the executive and legislative branches really have the power to steal? I understand lawmakers have the power to tax. But this is something new, and something dangerous.
Gov. Jodi Rell's budget called for seizure of these monies as part of her deficit reduction plan. Never mind that the money was held in trust. Never mind that the funds are under the control of the judicial branch. Never mind that the monies do not come from the general fund. The governor wanted cash, and she wanted it quick. The Legislature obliged the governor.
Late last week, lawmakers amended a bill, adding language to seize the funds. The very next day, the bill moves immediately to the House floor, where it is passed without any public comment whatsoever. A simple wham, bam, thank you ma'am. Early in the morning on the very next day, the Senate approves the measure, again without debate or public comment.
This was as graceful as a gunpoint stick up at an ATM.
The Client Security Fund is generated by an assessment 0n lawyers administered by the judicial branch. The fund is governed by a volunteer board. Funds are to be used to reimburse clients who have been defrauded by lawyers and to assist lawyers who succumb to drug and alcohol abuse. These are not monies generated by the legislative or executive branch. The monies are held in trust.
Apparently, this is just the beginning. The legislation permits immediate seizure of $2 million, with an invitation to come raid the fund again when the coffers are bare.
I am told that heads are spinning in the judiciary. They ought to be. But we need more than spinning heads. How about litigation designed to challenge whether the executive and legislative branches really have the power to steal? I understand lawmakers have the power to tax. But this is something new, and something dangerous.
Thursday, March 5, 2009
A Grandmotherly Asp Set To Strike
Buried deep within Governor Jodi Rell’s proposed budget is a provision that would get a lawyer disbarred, where the lawyer foolish enough to act on it. But the governor is no lawyer. She is the head of the executive branch. And she is asking the Legislature to help her rob a fund created by the judiciary for purposes of helping clients and lawyers in need. What will be done to stop her?
At issue is the Client Security Fund. This fund is a creature of the judiciary. It’s stated purpose is to provide relief to client’s who lose property or money as a result of the dishonest conduct of lawyers. It also funds a crisis intervention and referral service for lawyers who crumble under the weight of the world. Lawyers are assessed an annual fee to go into this fund, which, constitutes a trust.
The governor’s budget proposes that the state seize $2 million from the fund to help meet the current shortfall in revenues. It has folks in the judiciary seeing red, and not just red ink.
It seems a doubtful proposition as a matter of law that these funds can be seized without so much as wink and a nod to the separation of powers doctrine. We have three branches of government, after all.
To the judiciary falls the regulation of lawyers and the relationship between lawyers and clients. If the judiciary creates a fund by taxing lawyers and then puts those monies in trust to assure that both lawyers and clients are protected from the vagaries of life, what possible legal theory supports an executive or legislative branch seizure? I hope the judiciary is considering a constitutional challenge to this proposal.
Aren’t these trust funds? When a lawyer dips into to a trust fund for an unauthorized purpose, he or she faces disbarment, if not criminal prosecution. When public charities run afoul of accounting requirements, the Attorney General’s office has plenty to say. What precedent supports the Governor’s seizure of trust funds?
Of course, Gov. Rell is nothing if not shrewd, a grandmotherly asp if ever there was one, I say. So perhaps she is bluffing. Perhaps this feint at what looks to be a form of theft is merely a way of laying siege to a different fortress. "What? I cannot violate this trust? Oh, well, then I shall have to do what I hesitate to do: I shall tax legal services, even if that means the costs of those services shall increase for clients."
The economy is in tatters and the state’s budget is awash in red ink. Revenues are needed. But so are savings. What is the governor doing to cut state expenses?
I saw a recent list of the top 250 wage earners in state service. The salaries ranged from $1.6 million for UConn basketball coach Jim Calhoun to a low of $217,000 for an emergency room physician. Buried within the list are quarter of a million dollar registered nurses and a whopping $400,000 for the state’s top prison doctor. Presumably all of these people also enjoy generous state benefits, as well. These salaries are, I suspect, well above the mean for lawyers.
There is something obscene about these salaries for state employment at a time in which many folks face unemployment and the loss of homes. The state’s safety nets will be stretched mighty thin in a time of crisis. Among those safety nets is the Client Security Fund.
Sucking the life out of the Client Security Fund makes no sense. Need a few extra million? Give the state’s basketball and football coaches a call. They’re swimming in cash.
Reprinted courtesy of the Connecticut Law Tribune.
At issue is the Client Security Fund. This fund is a creature of the judiciary. It’s stated purpose is to provide relief to client’s who lose property or money as a result of the dishonest conduct of lawyers. It also funds a crisis intervention and referral service for lawyers who crumble under the weight of the world. Lawyers are assessed an annual fee to go into this fund, which, constitutes a trust.
The governor’s budget proposes that the state seize $2 million from the fund to help meet the current shortfall in revenues. It has folks in the judiciary seeing red, and not just red ink.
It seems a doubtful proposition as a matter of law that these funds can be seized without so much as wink and a nod to the separation of powers doctrine. We have three branches of government, after all.
To the judiciary falls the regulation of lawyers and the relationship between lawyers and clients. If the judiciary creates a fund by taxing lawyers and then puts those monies in trust to assure that both lawyers and clients are protected from the vagaries of life, what possible legal theory supports an executive or legislative branch seizure? I hope the judiciary is considering a constitutional challenge to this proposal.
Aren’t these trust funds? When a lawyer dips into to a trust fund for an unauthorized purpose, he or she faces disbarment, if not criminal prosecution. When public charities run afoul of accounting requirements, the Attorney General’s office has plenty to say. What precedent supports the Governor’s seizure of trust funds?
Of course, Gov. Rell is nothing if not shrewd, a grandmotherly asp if ever there was one, I say. So perhaps she is bluffing. Perhaps this feint at what looks to be a form of theft is merely a way of laying siege to a different fortress. "What? I cannot violate this trust? Oh, well, then I shall have to do what I hesitate to do: I shall tax legal services, even if that means the costs of those services shall increase for clients."
The economy is in tatters and the state’s budget is awash in red ink. Revenues are needed. But so are savings. What is the governor doing to cut state expenses?
I saw a recent list of the top 250 wage earners in state service. The salaries ranged from $1.6 million for UConn basketball coach Jim Calhoun to a low of $217,000 for an emergency room physician. Buried within the list are quarter of a million dollar registered nurses and a whopping $400,000 for the state’s top prison doctor. Presumably all of these people also enjoy generous state benefits, as well. These salaries are, I suspect, well above the mean for lawyers.
There is something obscene about these salaries for state employment at a time in which many folks face unemployment and the loss of homes. The state’s safety nets will be stretched mighty thin in a time of crisis. Among those safety nets is the Client Security Fund.
Sucking the life out of the Client Security Fund makes no sense. Need a few extra million? Give the state’s basketball and football coaches a call. They’re swimming in cash.
Reprinted courtesy of the Connecticut Law Tribune.
Wednesday, March 4, 2009
Matters Of Fact; Matters Of Faith
Regular readers know for the past couple of months I have fallen headlong into the literature on the historical Jesus. Just why the interest dawned so late in my life is a mystery to me. It is more than a decision to revisit, in a public sort of way, the preoccupations of a much younger man. There is more to it than that. Whatever is true about Jesus, it is indisputable that he is one of the most influential men to ever have lived. The search for the truth about him resembles the truth for transcendence in a world beset by nagging particulars.
The stack of books beside my bed grows deeper, and I add every couple of days a book to one of the shelves in my office that I have dedicated to this topic. I sit sometimes late in the day and stare at the spines, wishing, somehow that they could transport me back, perhaps to a walk along the road to Emmaus, or to the Temple in Jerusalem decades before it was destroyed by the Romans. What is this hunger?
I generally try to stay away from confessional works, or works carrying too heavy a theological freight. I want facts, somehow. Even as I know that there shall be precious little of what a trial lawyer calls facts. The sources are replete with hearsay. There is little, if anything, that is reliable when judged by the unsparing requirements of the law of evidence. It is as if the historical Jesus is a piece of meat thrown onto the theologians' scales; each writer places his thumb just beneath the flesh measured to give it the weight he desires. Beware the salesman hawking his faith.
So I was suprised to be so taken by a small volume by N. T. Wright, Who Was Jesus? Wright has a confessional purpose. He is Bishop of Durham, England, the book's rear cover tells me. And a New Testament scholar of repute. But he is also a believer in things unseen, and he writes with the confidence of a man challenging settled orthodoxies with the conviction that all orthodoxy is suspect. Even the most mudane assessment of fact requires a trust in the unseen.
Wright asks in this brief book that one take seriously the possibility of virgin birth. This is so much more than I bargained for. He asks the reader to "hold open the possibility that this account of [Jesus'] conception might just be true." Rather than recoil, I reassess what it is that I know, and how confident I am of the verities to which I am tethered.
Ask me the date of my birth and without a moment's hesitation I recite it, confident in an event of which I can have no knowledge, and must rely, as do we all, on collective memories and documents. I suspect no evil genius torn from Descartes' imagination has deceived me about this date; I am a small, small fry in the world's pan. I take the date of my birth as a simple fact on trust even though I have no personal knowledge of its truth. I am happily caught in this simple web of belief, sharing it with others who accept the same common markers as true.
But what if it is not so reliable after all? Should I question all even to the point of denying the obvious utility of all I take for granted? Obviously not. We are required to navigate daily in a world not our choosing. We pick the things to ponder and cast doubts into wells from which we are afraid to drink. We trust what we can.
I do not believe that Jesus was born of a virgin, but I cannot deny that if there is a God capable of creating the world out of nothing, then there is the possibility that he can spawn humans at will. But I cannot accept this as a fact. I cannot even accept it as a satisfying belief. To use William James' concept, there is no cash value in such a faith.
Too pragmatic, you say? Perhaps. But I remain transfixed by a Jewish peasant crucified after preaching that the Kingdom of Heaven is at hand. What did he see that draws me still? And, more to the point, can I see it, too? Perhaps not. But the quest remains, and so, in a funny unexpected way, does hope.
The stack of books beside my bed grows deeper, and I add every couple of days a book to one of the shelves in my office that I have dedicated to this topic. I sit sometimes late in the day and stare at the spines, wishing, somehow that they could transport me back, perhaps to a walk along the road to Emmaus, or to the Temple in Jerusalem decades before it was destroyed by the Romans. What is this hunger?
I generally try to stay away from confessional works, or works carrying too heavy a theological freight. I want facts, somehow. Even as I know that there shall be precious little of what a trial lawyer calls facts. The sources are replete with hearsay. There is little, if anything, that is reliable when judged by the unsparing requirements of the law of evidence. It is as if the historical Jesus is a piece of meat thrown onto the theologians' scales; each writer places his thumb just beneath the flesh measured to give it the weight he desires. Beware the salesman hawking his faith.
So I was suprised to be so taken by a small volume by N. T. Wright, Who Was Jesus? Wright has a confessional purpose. He is Bishop of Durham, England, the book's rear cover tells me. And a New Testament scholar of repute. But he is also a believer in things unseen, and he writes with the confidence of a man challenging settled orthodoxies with the conviction that all orthodoxy is suspect. Even the most mudane assessment of fact requires a trust in the unseen.
Wright asks in this brief book that one take seriously the possibility of virgin birth. This is so much more than I bargained for. He asks the reader to "hold open the possibility that this account of [Jesus'] conception might just be true." Rather than recoil, I reassess what it is that I know, and how confident I am of the verities to which I am tethered.
Ask me the date of my birth and without a moment's hesitation I recite it, confident in an event of which I can have no knowledge, and must rely, as do we all, on collective memories and documents. I suspect no evil genius torn from Descartes' imagination has deceived me about this date; I am a small, small fry in the world's pan. I take the date of my birth as a simple fact on trust even though I have no personal knowledge of its truth. I am happily caught in this simple web of belief, sharing it with others who accept the same common markers as true.
But what if it is not so reliable after all? Should I question all even to the point of denying the obvious utility of all I take for granted? Obviously not. We are required to navigate daily in a world not our choosing. We pick the things to ponder and cast doubts into wells from which we are afraid to drink. We trust what we can.
I do not believe that Jesus was born of a virgin, but I cannot deny that if there is a God capable of creating the world out of nothing, then there is the possibility that he can spawn humans at will. But I cannot accept this as a fact. I cannot even accept it as a satisfying belief. To use William James' concept, there is no cash value in such a faith.
Too pragmatic, you say? Perhaps. But I remain transfixed by a Jewish peasant crucified after preaching that the Kingdom of Heaven is at hand. What did he see that draws me still? And, more to the point, can I see it, too? Perhaps not. But the quest remains, and so, in a funny unexpected way, does hope.
Apologia Pro Vita Excited Delirium Syndrome
As soon as dinner ended last night, my wife and I trundled up to our bedroom for an evening's pleasure. This night was even more exciting than most. A new book had arrived, and I was eager to begin it. There is no thrill quite so satisfying as learning something new.
Excited Delirium Syndrome: Cause of Death and Prevention, is not exactly hot of the press. It was published in 2006 by the Taylor & Francis Group as part of its CRC series. I've read other volumes in the series. The works aspire to shed light on common problems by means of applied science.
I am contemplating a law suit against Taser International and a local police department arising from the death of a young man. Police responded to a noise complaint. When they arrived, they found the man behaving in a confrontational and irrational manner. He issued threats. Police burst into his apartment. He resisted. He was tasered. And now he is dead. This is not an uncommon fact pattern to those who read regularly about police use of force.
I've read through the manuals provided by the manufacturer to the police about the Taser. I've reviewed the past five years worth of reports on the use of Tasers in arrests in the local police department. And now I have read a comprehensive account prepared by law enforcement about the man's death. The medical examiner notes that cause of death as excited delirium syndrome. There were no physical findings about death in the autopsy. It's just one of those things that are prone to happen to folks with a history of mental illness or drug abuse when confronted by police.
Excited Delirium Syndrome was written by a husband and wife team. Vincent J.M. Di Maio is a forensic pathologist in Texas. His wife, Theresa G. Di Maio, is a psychiatric nurse who recently obtained what she calls in the book's preface a "Graduate Certificate in Forensic Nursing." She is the primary author but lavishly thanks her husband for making this, her first book, possible.
I dwell on the personalities behind the book because of its rhetorical content. The authors' evince an unscientific sort of hostility, a social psychologist would simply call it a bias, that undermines confidence in the otherwise even tone of the book. Those quick to blame police for deaths are reminded: "That death can be due to normal physiological reactions of the body to stress gone awry, and to the use of stimulants, does not conform to the present mind-set of many Americans, that anytime tragedy occurs someone must be at fault and they should be punished, or even better sued." Science and tort reform are tucked neatly abed together.
Several pages later, a series in The Hartford Courant about deaths while in restraints, is dismissed as inflammatory and reliant upon "incorrect description of treatment by medical staff in response to violent patients." Did the authors conduct an independent review of the files on which the Courant relied? Or did they shoot first, neglecting even to ask questions?
And then again: "The fact is that many of the investigators promulgating the theories of restraint asphyxia have never had contact with or attempted to restrain a violent individual." This explains nothing, but is rather an apologia for those who use force on patients and arrestees who then die. It's not a very elegant apologia and can be boiled down to three simple words: "Blame the victim."
The authors note that excited delirium syndrome was for many years an explanation for chronic conditions unfolding over weeks and months and leading to death. They note that in recent years, the syndrome has taken a new, acute, form. People die now in a matter of minutes and hours. What accounts for this change?
One answer might simply be the manner, means and new technologies associated with the restraint of the mentally ill. Devices such a tasers or methods such as hog tying may well result in enormous stress to those who are vulnerable as a result of mental disease or defect. An argument can be made that law enforcement is on notice that there is an increased risk of death associated with the use of some technologies and means. In that case, it is reckless for law enforcement officers to use a Taser on an apparently mentally ill man. The use of the technoloigy carries a substantial risk of death that may well be unjustified.
I've not finished the Di Maio's book. I will tonight. It is short and clearly written. In the meantime, I have questions about them and Taylor & Francis. Does anyone know whethere the publisher is an outfit funded and sponsored by law enforcement? And what of the Di Maio's? Has their testimony and allegiance already been bought and paid for? Does anyone out there know?
Excited Delirium Syndrome: Cause of Death and Prevention, is not exactly hot of the press. It was published in 2006 by the Taylor & Francis Group as part of its CRC series. I've read other volumes in the series. The works aspire to shed light on common problems by means of applied science.
I am contemplating a law suit against Taser International and a local police department arising from the death of a young man. Police responded to a noise complaint. When they arrived, they found the man behaving in a confrontational and irrational manner. He issued threats. Police burst into his apartment. He resisted. He was tasered. And now he is dead. This is not an uncommon fact pattern to those who read regularly about police use of force.
I've read through the manuals provided by the manufacturer to the police about the Taser. I've reviewed the past five years worth of reports on the use of Tasers in arrests in the local police department. And now I have read a comprehensive account prepared by law enforcement about the man's death. The medical examiner notes that cause of death as excited delirium syndrome. There were no physical findings about death in the autopsy. It's just one of those things that are prone to happen to folks with a history of mental illness or drug abuse when confronted by police.
Excited Delirium Syndrome was written by a husband and wife team. Vincent J.M. Di Maio is a forensic pathologist in Texas. His wife, Theresa G. Di Maio, is a psychiatric nurse who recently obtained what she calls in the book's preface a "Graduate Certificate in Forensic Nursing." She is the primary author but lavishly thanks her husband for making this, her first book, possible.
I dwell on the personalities behind the book because of its rhetorical content. The authors' evince an unscientific sort of hostility, a social psychologist would simply call it a bias, that undermines confidence in the otherwise even tone of the book. Those quick to blame police for deaths are reminded: "That death can be due to normal physiological reactions of the body to stress gone awry, and to the use of stimulants, does not conform to the present mind-set of many Americans, that anytime tragedy occurs someone must be at fault and they should be punished, or even better sued." Science and tort reform are tucked neatly abed together.
Several pages later, a series in The Hartford Courant about deaths while in restraints, is dismissed as inflammatory and reliant upon "incorrect description of treatment by medical staff in response to violent patients." Did the authors conduct an independent review of the files on which the Courant relied? Or did they shoot first, neglecting even to ask questions?
And then again: "The fact is that many of the investigators promulgating the theories of restraint asphyxia have never had contact with or attempted to restrain a violent individual." This explains nothing, but is rather an apologia for those who use force on patients and arrestees who then die. It's not a very elegant apologia and can be boiled down to three simple words: "Blame the victim."
The authors note that excited delirium syndrome was for many years an explanation for chronic conditions unfolding over weeks and months and leading to death. They note that in recent years, the syndrome has taken a new, acute, form. People die now in a matter of minutes and hours. What accounts for this change?
One answer might simply be the manner, means and new technologies associated with the restraint of the mentally ill. Devices such a tasers or methods such as hog tying may well result in enormous stress to those who are vulnerable as a result of mental disease or defect. An argument can be made that law enforcement is on notice that there is an increased risk of death associated with the use of some technologies and means. In that case, it is reckless for law enforcement officers to use a Taser on an apparently mentally ill man. The use of the technoloigy carries a substantial risk of death that may well be unjustified.
I've not finished the Di Maio's book. I will tonight. It is short and clearly written. In the meantime, I have questions about them and Taylor & Francis. Does anyone know whethere the publisher is an outfit funded and sponsored by law enforcement? And what of the Di Maio's? Has their testimony and allegiance already been bought and paid for? Does anyone out there know?
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