We ask a lot of clients when we ask them to trust that justice will be done in the courts. While we seek to improve public confidence in the courts, there is still plenty of reason to be suspect.
Consider a case of mine. His case is docked under number S.C. 18178.I write about it now with the client’s consent, but I do not use his name. I write about it because I cannot get the courts to act, and my client has grown weary of waiting for justice. I write out of a sense of despair.
The man pleaded under the Alford doctrine on the eve of trial to offenses arising from the complaint of a young child for whom he had baby sat. Such a plea reflects a compromise: the client does not acknowledge doing what he is charged with; he merely agreed to accept a plea because the terms are better than what he would get if a jury believed the state’s case.
My client received no jail sentence. He was told by his trial lawyer and the trial judge at sentencing that he would not have to register as a sex offender. The state said nothing as the lawyer and judge assured the client he would not have to register.
Here is what was said at the time the plea was entered. "[I]t is our understanding and belief, I think as well as the State’s attorney, that none of these charges carry any sexual offender registration," his lawyer said. "That is my understanding," the judge echoed.
By used-car lot standards the client had struck a deal and knew what he was buying. An implied condition of this unholy contract was no registration.But we all know that the exalted and rarefied standards of a used car lot far exceed what measure of justice we offer those accused of crimes. In the criminal court, the implied condition can be condensed to the following rule: Screw the defendant to the wall anyway you can. Errors at trial are harmless. Lawyers provide effective assistance of counsel even when asleep. Trials need only be fair, not perfect. The presumption of innocence is a three-dollar whore, and many courts continue to argue her cost is too high.
After sentencing, the client sought to go about the difficult task of rebuilding his life. Imagine his surprise when well after the plea he was informed that he would have to register as a sex offender.
I got involved in his case after a handful of other lawyers had tried and failed to extricate the client from this lawless nightmare. Just barely I was able to keep him out of jail. He registered as an offender, and now lives with the unbearable strain of a crackpot neighbor’s monitoring his every move. She thinks she’s protecting the world. When my client asks for protection from her, the police ignore him.
The life of a sex offender is nasty and brutish, you see.
So I appealed the requirement that he be placed on the registry. I filed my brief in the Appellate Court of the State of Connecticut. For reasons unknown to me, the state Supreme Court moved the case to its docket. And I argued on behalf of my client. The argument took place in mid-October 2008, eighteen months ago.
I did not think the argument before the justices went well. "Why didn’t your client petition for habeas corpus relief?" one justice asked. "The remedy he seeks is the benefit of the bargain he struck. He does not want a new trial," I answered.
From time to time my client asks me when the court will act. I tell him I do not know. There is nothing I can do. We have petitioned Oz. We must now wait.
But how long must this man wait for a decision? Forever?I called the Supreme Court clerk’s officer the other day to make sure I hadn’t missed publication of the decision. The case is still undecided, I was told. I passed word along to my client. His response is privileged.
How long, Madame Chief Justice, must we wait for a decision in this simple case? Will it be another month, or another year? Justice delayed is justice denied, I’ve heard it said. Clarence Darrow once observed, there is no justice in or our of court. Had Darrow lived and practiced in our fair state, he might also have added: "There are no final decisions, either."
Reprinted courtesy of the Connecticut Law Tribune.
Thursday, April 29, 2010
Wednesday, April 28, 2010
Chatigny Hearing Set For Today At 2:30
Confirmation hearings over whether Robert N. Chatigny should be confirmed as a judge of the United States Court of Appeals for the Second Circuit are a potential watershed event for the Senate Judicary Committee. Rather than degenerating into the sort of partisan wrangling pitting right against left over doctrinal matters such as how to interpret the federal Constitution, the hearing offers an opportunity instead to focus on an issue that should unite Senators of all political persuasions: Is Chatigny the right stuff to sit on the second highest court of the land.
The Senate Judiciary Committee will examine Chatigny today at 2:30. The Hartford Courant reports that the judge can expect close questioning about his demeanor as a judge. Because there are substantial questions about his demeanor, the committee should defer. There are more capable jurists ready for promotion, such as Janet Hall, sitting in Bridgeport.
Chatigny was appointed a federal district court judge by President Clinton in the mid-1990s. At the time he was appointed, he had never having tried a case to a verdict. Just what he would do in a courtroom was an open question. His legacy as a jurist is marred by his handling of a death row inmate's request to die with dignity, his candor in response to questions put to him about his political commitments, his managerial style as a jurist and his commitment to a transparent court system, and his respect for the role of juries.
The Michael Ross case.
Michael Ross was a convicted serial killer who, after a decade and a half of fighting imposition of the death penalty, decided to abandon further collateral appeals and simply be put to death. He was executed, and was the first person executed in Connecticut since 1960.
Ross was deemed competent to waive further appeals, but his family and death penalty advocates pressed claims to block the execution in the federal courts. Chatigny, as chief judge of the district, ended up with the case.
Whether anyone either than Ross had standing to decide what should be done with his waiver was the central issue. Ross had independent counsel, T.R. Paulding, to vindicate his right to make life and death decisions for himself.
Judge Chatigny shocked counsel in the case by opining in a hearing that Ross was perhaps the least culpable of the men on death row. His sexual sadism was an illness. Killing a sick man was wrong, and Paulding was perhaps less than zealous in supporting his client's right to die. When Paulding demurred, the judge threatened Paulding, telling him "I'll have your law license" if it turns out Ross was, in fact, unfit to make this decision.
This is the equivalent of an umpire stopping a baseball game to give a pitcher on the mound a pep talk. "If you want me to call strikes, you've got to aim a little higher. You know I am inclined to call high balls strikes." We'd boo such an umpire off the field. Why do we give a judge doing the equivalent a promotion?
Chatigny's behavior in the conference was so bizarre a member of the Connecticut Attorney Generals Office questioned the judge's impartiality.
I Forgot The Dog Ate My Homework
Chatigny of course denied any bias or partiality, but never disclosed that as a practicing lawyer he had once filed a pleading in the State Supreme Court seeking to intervene in the Ross case on behalf of Ross. When challenged about this later, he claimed simply to have "forgotten."
Just how a lawyer forgets his involvement in a case involving the state's most notorious serial killer is a mystery to me, unless, of course, the judge didn't forget at all. The claim of failed recollection has the tinny ring of the student's request for more time to complete an assignment because, er, um ... well, the dog ate his homework.
I am a criminal defense lawyer who opposes the death penalty. I also briefly represented Ross in civil proceedings about whether he should have greater access to reading material while on death row. What's more, I oppose many laws regarding sex offenders as savage in intent and application. I should love Judge Chatigny. But I do not.
Well before the federal sentencing guidelines were declared non-mandatory, Chatigny found the means to depart downward in pornography cases in a manner so routine as to have raised the ire of critics. His decision declaring sex offender registration to violate a person's civil rights also has drawn criticism, and was reverse by the United States Supreme Court. Internet chatter declaims the judge to be soft on sex.
Much though I appreciate his stand on these issues, I oppose his candidacy for reasons more fundamental than his rulings in particular types of cases. He takes an expansive view of a judge's role. He would be far more comfortable in a European setting favoring inquisitorial, judge driven proceedings. I have been involved in more than one proceeding before the judge in which he directed the parties to brief issues of interest to him, but of no interest to either party. This judicial tourism added time and expense to litigation that neither party was prepared to pay.
But you learn to obey the overlord's orders.
I am crossing the professional aisle in this case to join with Connecticut prosecutors, who have opposed the confirmation of Chatigny because of his judicial demeanor and temperament. He sought to impose a managerial ethos on the federal courts in Connecticut that led to new meet and confer rulings, filing requirements and conferences. His goal was to move cases more quickly. It does not appear to me that he succeeded in doing anything other than making busywork for idle hands. The docket still creeps in Connecticut.
Transparency and the Rule of Law
Although he calls himself an independent, he is the play pal of U.S. Senator Christopher Dodd, a lame duck whose wedding Chatigny performed not long ago. Before taking the bench, Judge Chatigny and his family, and his wife's family, contributed regularly to Dodd's war chests. After his appointment as federal judge, wags in the Connecticut courts marvelled at how the confirmation process was finagled to assure that the judge was senior over the other two federal District Court judges appointed at or about the same time. You see, first-come, first served when it comes to the paltry power of being chief judge of the district. These things matter to Chatigny and Dodd, Centurions casting lots over the robes of justice.
I have for many years been spared the necessity of appearing in Chatigny's courtroom. Cases of mine assigned to him were transferred many years ago in the "interest of justice." New cases of mine no longer appear on his docket. This is a gift for which I am profoundly grateful.
On his Senate questionnaire, the judge mentioned that the District kept a list of "certain lawyers" in whose cases the judge would not sit. I asked for a copy of the list. Request denied under the Freedom of Information Act, which exempts the Courts from transparency in such matters. Transparency anyone?
The judge's recusal from my cases took place long before the Ross fiasco. But it took place after a particularly lawless decision of Judge Chatigny's and two other judges on the Second Circuit that I criticized called Lee v. Edwards. In that case, the judge voted to overturn a decision remitting damages against a police officer in a malicious prosecution claim. The officer's lawyer had stipulated to municipal indemnification of the officer, thus making moot the man's capacity to pay damages. In reducing the jury's award from $200,000 to $75,000, the court held that a police officer's earning capacity was well known. Perhaps. But it was also irrelevant on the particular facts of that case. Why the judicial overreach?
The case illustrates the key to Chatigny's judicial Platonism. Judge, not jury, knows best what justice requires, even on matters of fact, a juror's domain. Such arrogance befits a judge who never once in his career stood in the well of a court and asked a jury for anything. The judge also scorns lawyers, hence his treatment of Paulding and his fantasy-land vision of the courts as judicially managed sausage factory.
Judge Chatigny will be all quiet humility, apologies and contrition before the Senate today. He will play this role because he wants something. Behind the velvet demeanor is the iron-fisted determination that he knows best. It is a demeanor unsuited for the second highest court in the land.
I suspect he will be confirmed over modest opposition. Demeanor isn't an important enough issue for other members of the power elite to use to mobilize voters. But it should be the most important issue of them all. When Chatigny is confirmed, there will be another stuffed robe on the prowl in New York City, hoping for a miraculous ride to the Supreme Court. The miracles should cease for Robert N. Chatigny. That he was appointed at all to the District Court should be miracle enough.
The Senate Judiciary Committee will examine Chatigny today at 2:30. The Hartford Courant reports that the judge can expect close questioning about his demeanor as a judge. Because there are substantial questions about his demeanor, the committee should defer. There are more capable jurists ready for promotion, such as Janet Hall, sitting in Bridgeport.
Chatigny was appointed a federal district court judge by President Clinton in the mid-1990s. At the time he was appointed, he had never having tried a case to a verdict. Just what he would do in a courtroom was an open question. His legacy as a jurist is marred by his handling of a death row inmate's request to die with dignity, his candor in response to questions put to him about his political commitments, his managerial style as a jurist and his commitment to a transparent court system, and his respect for the role of juries.
The Michael Ross case.
Michael Ross was a convicted serial killer who, after a decade and a half of fighting imposition of the death penalty, decided to abandon further collateral appeals and simply be put to death. He was executed, and was the first person executed in Connecticut since 1960.
Ross was deemed competent to waive further appeals, but his family and death penalty advocates pressed claims to block the execution in the federal courts. Chatigny, as chief judge of the district, ended up with the case.
Whether anyone either than Ross had standing to decide what should be done with his waiver was the central issue. Ross had independent counsel, T.R. Paulding, to vindicate his right to make life and death decisions for himself.
Judge Chatigny shocked counsel in the case by opining in a hearing that Ross was perhaps the least culpable of the men on death row. His sexual sadism was an illness. Killing a sick man was wrong, and Paulding was perhaps less than zealous in supporting his client's right to die. When Paulding demurred, the judge threatened Paulding, telling him "I'll have your law license" if it turns out Ross was, in fact, unfit to make this decision.
This is the equivalent of an umpire stopping a baseball game to give a pitcher on the mound a pep talk. "If you want me to call strikes, you've got to aim a little higher. You know I am inclined to call high balls strikes." We'd boo such an umpire off the field. Why do we give a judge doing the equivalent a promotion?
Chatigny's behavior in the conference was so bizarre a member of the Connecticut Attorney Generals Office questioned the judge's impartiality.
I Forgot The Dog Ate My Homework
Chatigny of course denied any bias or partiality, but never disclosed that as a practicing lawyer he had once filed a pleading in the State Supreme Court seeking to intervene in the Ross case on behalf of Ross. When challenged about this later, he claimed simply to have "forgotten."
Just how a lawyer forgets his involvement in a case involving the state's most notorious serial killer is a mystery to me, unless, of course, the judge didn't forget at all. The claim of failed recollection has the tinny ring of the student's request for more time to complete an assignment because, er, um ... well, the dog ate his homework.
I am a criminal defense lawyer who opposes the death penalty. I also briefly represented Ross in civil proceedings about whether he should have greater access to reading material while on death row. What's more, I oppose many laws regarding sex offenders as savage in intent and application. I should love Judge Chatigny. But I do not.
Well before the federal sentencing guidelines were declared non-mandatory, Chatigny found the means to depart downward in pornography cases in a manner so routine as to have raised the ire of critics. His decision declaring sex offender registration to violate a person's civil rights also has drawn criticism, and was reverse by the United States Supreme Court. Internet chatter declaims the judge to be soft on sex.
Much though I appreciate his stand on these issues, I oppose his candidacy for reasons more fundamental than his rulings in particular types of cases. He takes an expansive view of a judge's role. He would be far more comfortable in a European setting favoring inquisitorial, judge driven proceedings. I have been involved in more than one proceeding before the judge in which he directed the parties to brief issues of interest to him, but of no interest to either party. This judicial tourism added time and expense to litigation that neither party was prepared to pay.
But you learn to obey the overlord's orders.
I am crossing the professional aisle in this case to join with Connecticut prosecutors, who have opposed the confirmation of Chatigny because of his judicial demeanor and temperament. He sought to impose a managerial ethos on the federal courts in Connecticut that led to new meet and confer rulings, filing requirements and conferences. His goal was to move cases more quickly. It does not appear to me that he succeeded in doing anything other than making busywork for idle hands. The docket still creeps in Connecticut.
Transparency and the Rule of Law
Although he calls himself an independent, he is the play pal of U.S. Senator Christopher Dodd, a lame duck whose wedding Chatigny performed not long ago. Before taking the bench, Judge Chatigny and his family, and his wife's family, contributed regularly to Dodd's war chests. After his appointment as federal judge, wags in the Connecticut courts marvelled at how the confirmation process was finagled to assure that the judge was senior over the other two federal District Court judges appointed at or about the same time. You see, first-come, first served when it comes to the paltry power of being chief judge of the district. These things matter to Chatigny and Dodd, Centurions casting lots over the robes of justice.
I have for many years been spared the necessity of appearing in Chatigny's courtroom. Cases of mine assigned to him were transferred many years ago in the "interest of justice." New cases of mine no longer appear on his docket. This is a gift for which I am profoundly grateful.
On his Senate questionnaire, the judge mentioned that the District kept a list of "certain lawyers" in whose cases the judge would not sit. I asked for a copy of the list. Request denied under the Freedom of Information Act, which exempts the Courts from transparency in such matters. Transparency anyone?
The judge's recusal from my cases took place long before the Ross fiasco. But it took place after a particularly lawless decision of Judge Chatigny's and two other judges on the Second Circuit that I criticized called Lee v. Edwards. In that case, the judge voted to overturn a decision remitting damages against a police officer in a malicious prosecution claim. The officer's lawyer had stipulated to municipal indemnification of the officer, thus making moot the man's capacity to pay damages. In reducing the jury's award from $200,000 to $75,000, the court held that a police officer's earning capacity was well known. Perhaps. But it was also irrelevant on the particular facts of that case. Why the judicial overreach?
The case illustrates the key to Chatigny's judicial Platonism. Judge, not jury, knows best what justice requires, even on matters of fact, a juror's domain. Such arrogance befits a judge who never once in his career stood in the well of a court and asked a jury for anything. The judge also scorns lawyers, hence his treatment of Paulding and his fantasy-land vision of the courts as judicially managed sausage factory.
Judge Chatigny will be all quiet humility, apologies and contrition before the Senate today. He will play this role because he wants something. Behind the velvet demeanor is the iron-fisted determination that he knows best. It is a demeanor unsuited for the second highest court in the land.
I suspect he will be confirmed over modest opposition. Demeanor isn't an important enough issue for other members of the power elite to use to mobilize voters. But it should be the most important issue of them all. When Chatigny is confirmed, there will be another stuffed robe on the prowl in New York City, hoping for a miraculous ride to the Supreme Court. The miracles should cease for Robert N. Chatigny. That he was appointed at all to the District Court should be miracle enough.
Monday, April 26, 2010
Hey, Senator Leahy! How About Gerry Darrow?
Senator Patrick Leahy, chairman of the Senate Judiciary Committee, opined this morning that it might be time to look further afield for a Supreme Court justice than has become customary.
Writing for AOL.news, the Senator had the following to say:
"We can all agree that the next nominee to the Supreme Court must be well qualified, and at the top of the legal profession. I believe that the field from which to select this nominee should extend beyond the Federal Circuit Courts of Appeals. Over the years, our nation has benefited from diverse perspectives on the Supreme Court. Today's Supreme Court is the first in history to be limited to former federal appellate judges.
"The Supreme Court once included among its ranks former governors, former cabinet members, former senators and even a former president. A Supreme Court nominee with a varied background would be a welcome addition. The Supreme Court is charged with upholding the constitutional protections and liberties of every individual American. "We the People" deserve no less.
"I would like to see a nominee who will be faithful to the Constitution and its storied history. The next justice should be someone who understands and appreciates the real-world impact of the Supreme Court's decisions on hard-working Americans. I would also like to see a nominee who reflects Justice Stevens' reverence for the Supreme Court as an institution."
Amen, Senator. It's time for a public defender on the Supreme Court, or a trial lawyer representing folks in civil claims. Who better to teach the Court about the sufferings of ordinary people? Who reveres the Constitution more than a public defender, demanding daily that power honor the rights of the least among us?
How about an ordinary sort of lawyer, one who has never held political power, but who knows the power of persuasion in the well of the Court? How about someone whose law degree did not confer an expectation that all of life's blessings will come to them as a matter of right, but who attended a modest sort of school, a school the bred the modest sorts of expectation that if you work hard you can support a family?
We don't need another lawyer who served power. We need a lawyer who has confronted power and served people. We need, Senator Leahy, Gerry Darrow. Someone send this link to the Senator. Who Is Gerry Darrow?
You can read the complete text of Leahy's remarks here. Leahy's remarks.
Writing for AOL.news, the Senator had the following to say:
"We can all agree that the next nominee to the Supreme Court must be well qualified, and at the top of the legal profession. I believe that the field from which to select this nominee should extend beyond the Federal Circuit Courts of Appeals. Over the years, our nation has benefited from diverse perspectives on the Supreme Court. Today's Supreme Court is the first in history to be limited to former federal appellate judges.
"The Supreme Court once included among its ranks former governors, former cabinet members, former senators and even a former president. A Supreme Court nominee with a varied background would be a welcome addition. The Supreme Court is charged with upholding the constitutional protections and liberties of every individual American. "We the People" deserve no less.
"I would like to see a nominee who will be faithful to the Constitution and its storied history. The next justice should be someone who understands and appreciates the real-world impact of the Supreme Court's decisions on hard-working Americans. I would also like to see a nominee who reflects Justice Stevens' reverence for the Supreme Court as an institution."
Amen, Senator. It's time for a public defender on the Supreme Court, or a trial lawyer representing folks in civil claims. Who better to teach the Court about the sufferings of ordinary people? Who reveres the Constitution more than a public defender, demanding daily that power honor the rights of the least among us?
How about an ordinary sort of lawyer, one who has never held political power, but who knows the power of persuasion in the well of the Court? How about someone whose law degree did not confer an expectation that all of life's blessings will come to them as a matter of right, but who attended a modest sort of school, a school the bred the modest sorts of expectation that if you work hard you can support a family?
We don't need another lawyer who served power. We need a lawyer who has confronted power and served people. We need, Senator Leahy, Gerry Darrow. Someone send this link to the Senator. Who Is Gerry Darrow?
You can read the complete text of Leahy's remarks here. Leahy's remarks.
The Child Witness
All weekend long I grumbled, groped and procrastinated. I just can't face what needs doing this week. That's because tomorrow I will cross examine a ten-year-old.
There is nothing in the law more unpleasant or distasteful than that.
I've cross examined professional kidnappers granted immunity by the federal government, drug king pins, folks who trucked, bartered and traded in all manner of evil. But the cross examination that still sears me was that of a nine-year-old child.
The state accused my client of anally raping the girl and her two sisters. The defendant, my client, was their father. The girls were seven, nine and 12 when the assaults took place. My client denied the charges, and so we went to trial. The state saved the youngest girl, ten at the time of trial, for last.
Her father sat at my table, accused of violating her. The state was gentle with this young witness. She spoke softly, but hesitantly. A social worker sat just beyond the bar beaming encouragement. Her testimony did not go well for the state. Crucial things were left only partially said, things which, if said, would certainly have led to a conviction.
"Your witness," were two of the most terrifying words I could have imagined.
I needed to make sure that the omissions in her testimony were locked in. The testimony of her sisters was explosive. A jury would be inclined to give this child the benefit of the doubt. The presumption of innocence goes on holiday when a child takes the stand.
I got up from my chair, stood in the well of the court, and was overcome with how beautiful and complete a person this little girl was. I wanted to adopt her and spare her the courtroom. It seemed obscene to subject her to the scrutiny of strangers, and somehow wrong to do the painstaking work of cross examination.
I survived the ordeal. The witness did not say the things that would have spelled certain doom for my client. Indeed, certain of the charges were thrown out because the state could not prove its claim with the testimony offered. But somehow, it felt like less than victory.
This week I face another ten-year-old and I am weak with fear. A courtroom can be a ferocious place, filled with storm and stress of battles well and truly waged. But there is no warring with a child witness. There cannot be. Who would forgive it?
I am counting the hours until she takes the stand. I know that once this nightmare begins, it must end. Waiting is the hard part.
There is nothing in the law more unpleasant or distasteful than that.
I've cross examined professional kidnappers granted immunity by the federal government, drug king pins, folks who trucked, bartered and traded in all manner of evil. But the cross examination that still sears me was that of a nine-year-old child.
The state accused my client of anally raping the girl and her two sisters. The defendant, my client, was their father. The girls were seven, nine and 12 when the assaults took place. My client denied the charges, and so we went to trial. The state saved the youngest girl, ten at the time of trial, for last.
Her father sat at my table, accused of violating her. The state was gentle with this young witness. She spoke softly, but hesitantly. A social worker sat just beyond the bar beaming encouragement. Her testimony did not go well for the state. Crucial things were left only partially said, things which, if said, would certainly have led to a conviction.
"Your witness," were two of the most terrifying words I could have imagined.
I needed to make sure that the omissions in her testimony were locked in. The testimony of her sisters was explosive. A jury would be inclined to give this child the benefit of the doubt. The presumption of innocence goes on holiday when a child takes the stand.
I got up from my chair, stood in the well of the court, and was overcome with how beautiful and complete a person this little girl was. I wanted to adopt her and spare her the courtroom. It seemed obscene to subject her to the scrutiny of strangers, and somehow wrong to do the painstaking work of cross examination.
I survived the ordeal. The witness did not say the things that would have spelled certain doom for my client. Indeed, certain of the charges were thrown out because the state could not prove its claim with the testimony offered. But somehow, it felt like less than victory.
This week I face another ten-year-old and I am weak with fear. A courtroom can be a ferocious place, filled with storm and stress of battles well and truly waged. But there is no warring with a child witness. There cannot be. Who would forgive it?
I am counting the hours until she takes the stand. I know that once this nightmare begins, it must end. Waiting is the hard part.
I Am Moving To Arizona
Arizona's new immigration legislation wasn't enough to make me think of moving there. The thing that caught my ear is a provision in the law giving ordinary citizens a private right of action if the police do not do their job. It's enough to set me to thinking about packing my bags and heading Southwest.
The law is a civil rights lawyer's dream come true.
Forget for a moment the inevitable clash of the sovereigns: Is the legislation merely an extension of the state's police power? Or does it intrude upon an area that is the province of federal law? This legal question will be resolved by the courts quickly. Most likely the courts will duck the issue. After all, when have the courts ever shied away from the notion of concurrent sovereignty -- two governments policing the same turf, punishing the same offenses?
The jaw-dropping part of the bill comes in the creation of a right for ordinary citizens to sue police officers for money damages. Here's the provision of the law that caught my eye:
G. A PERSON MAY BRING AN ACTION IN SUPERIOR COURT TO CHALLENGE ANY
OFFICIAL OR AGENCY OF THIS STATE OR A COUNTY, CITY, TOWN OR OTHER POLITICAL SUBDIVISION OF THIS STATE THAT ADOPTS OR IMPLEMENTS A POLICY THAT LIMITS OR RESTRICTS THE ENFORCEMENT OF FEDERAL IMMIGRATION LAWS TO LESS THAN THE FULL EXTENT PERMITTED BY FEDERAL LAW. IF THERE IS A JUDICIAL FINDING THAT AN ENTITY HAS VIOLATED THIS SECTION, THE COURT SHALL ORDER ANY OF THE FOLLOWING:
1. THAT THE PERSON WHO BROUGHT THE ACTION RECOVER COURT COSTS AND
ATTORNEY FEES.
2. THAT THE ENTITY PAY A CIVIL PENALTY OF NOT LESS THAN ONE THOUSAND
DOLLARS AND NOT MORE THAN FIVE THOUSAND DOLLARS FOR EACH DAY THAT THE POLICY HAS REMAINED IN EFFECT AFTER THE FILING OF AN ACTION PURSUANT TO THIS SUBSECTION.
Unless you have practiced law in the area of federal civil rights for the past 20 years, you won't appreciate just how stunning this is.
In the area of police misconduct litigation, the courts are in wholesale retreat from justice. Very few claims make it to trial any longer, an activist conservative judiciary has seen to it by creation and application of legal doctrines spun whole cloth from the minds of judges. Police officers enjoy a broad qualified immunity from suit. You can't touch them. And just how broad is that immunity?
The Practicing Law Institute in New York holds an annual seminar on litigation arising under 42 U.S.C. Section 1983, the vehicle for raising money damages claims against state actors in the federal courts. Fifteen years ago, the two-volume practice aid distributed at the seminar had a chapter on qualified immunity. Now the section on immunity fills the entire second volume, and, in the past few years, the second volume has come to be fatter than the first. Moral? The courts will spend more time and energy deciding how to keep officials out of court than contending with claims in a courtroom. Vanishing trial? No. Insurgent judiciary.
Arizona's move to invite civil rights lawyers into its courtroom is a bonanza for the likes of me. I used to file scores of federal civil rights claims in a year. Now I file a couple, and struggled to get those past all the judicial obstacles to trial. In Arizona, the doors are flung wide open.
What's more, Arizona is doing something no federal court has done: It has created a right of action for citizens who want to sue because a police department is not doing its job. These so-called failure to protect claims have been a dead letter in federal courts for decades. The government's duty to protect you is largely unenforceable.
But Arizona is generous. Under federal law, a plaintiff must show actual injury. In Arizona it is enough to say a cop isn't doing his job. What are your damages for the violation of this somewhat abstract right? You needed prove them. Arizona guarantees you $1,000 to $5,000 a day plus attorney's fees for violations resulting from unlawful policies. This is taking posse comitatus to the courtroom.
This is pretty amazing stuff, but there's yet more.
Most often, a civil rights law is designed to protect a vulnerable minority from those in power. Read up on David's struggle versus Goliath when you swagger into a courtroom on behalf of the downtrodden. Arizona's law creates a crazy new dynamic: Are the cops not repressive enough? Then sue to make 'em snap the whip with more alacrity. The new law deprives police of discretion when applying one of the law's most amorphous standards -- reasonable suspicion.
There's a gold rush forming on in Arizona. Anyone out there care to enlighten me on how to seek admission to the courts of that state? Or better yet, any lawyers out there looking for experienced counsel in civil rights action to serve as of counsel in testing this law?
This law will not last long. Arizona can't afford it. In the meantime, I'm looking for cowboy boots and a hat. Yoo-hoo!
The law is a civil rights lawyer's dream come true.
Forget for a moment the inevitable clash of the sovereigns: Is the legislation merely an extension of the state's police power? Or does it intrude upon an area that is the province of federal law? This legal question will be resolved by the courts quickly. Most likely the courts will duck the issue. After all, when have the courts ever shied away from the notion of concurrent sovereignty -- two governments policing the same turf, punishing the same offenses?
The jaw-dropping part of the bill comes in the creation of a right for ordinary citizens to sue police officers for money damages. Here's the provision of the law that caught my eye:
G. A PERSON MAY BRING AN ACTION IN SUPERIOR COURT TO CHALLENGE ANY
OFFICIAL OR AGENCY OF THIS STATE OR A COUNTY, CITY, TOWN OR OTHER POLITICAL SUBDIVISION OF THIS STATE THAT ADOPTS OR IMPLEMENTS A POLICY THAT LIMITS OR RESTRICTS THE ENFORCEMENT OF FEDERAL IMMIGRATION LAWS TO LESS THAN THE FULL EXTENT PERMITTED BY FEDERAL LAW. IF THERE IS A JUDICIAL FINDING THAT AN ENTITY HAS VIOLATED THIS SECTION, THE COURT SHALL ORDER ANY OF THE FOLLOWING:
1. THAT THE PERSON WHO BROUGHT THE ACTION RECOVER COURT COSTS AND
ATTORNEY FEES.
2. THAT THE ENTITY PAY A CIVIL PENALTY OF NOT LESS THAN ONE THOUSAND
DOLLARS AND NOT MORE THAN FIVE THOUSAND DOLLARS FOR EACH DAY THAT THE POLICY HAS REMAINED IN EFFECT AFTER THE FILING OF AN ACTION PURSUANT TO THIS SUBSECTION.
Unless you have practiced law in the area of federal civil rights for the past 20 years, you won't appreciate just how stunning this is.
In the area of police misconduct litigation, the courts are in wholesale retreat from justice. Very few claims make it to trial any longer, an activist conservative judiciary has seen to it by creation and application of legal doctrines spun whole cloth from the minds of judges. Police officers enjoy a broad qualified immunity from suit. You can't touch them. And just how broad is that immunity?
The Practicing Law Institute in New York holds an annual seminar on litigation arising under 42 U.S.C. Section 1983, the vehicle for raising money damages claims against state actors in the federal courts. Fifteen years ago, the two-volume practice aid distributed at the seminar had a chapter on qualified immunity. Now the section on immunity fills the entire second volume, and, in the past few years, the second volume has come to be fatter than the first. Moral? The courts will spend more time and energy deciding how to keep officials out of court than contending with claims in a courtroom. Vanishing trial? No. Insurgent judiciary.
Arizona's move to invite civil rights lawyers into its courtroom is a bonanza for the likes of me. I used to file scores of federal civil rights claims in a year. Now I file a couple, and struggled to get those past all the judicial obstacles to trial. In Arizona, the doors are flung wide open.
What's more, Arizona is doing something no federal court has done: It has created a right of action for citizens who want to sue because a police department is not doing its job. These so-called failure to protect claims have been a dead letter in federal courts for decades. The government's duty to protect you is largely unenforceable.
But Arizona is generous. Under federal law, a plaintiff must show actual injury. In Arizona it is enough to say a cop isn't doing his job. What are your damages for the violation of this somewhat abstract right? You needed prove them. Arizona guarantees you $1,000 to $5,000 a day plus attorney's fees for violations resulting from unlawful policies. This is taking posse comitatus to the courtroom.
This is pretty amazing stuff, but there's yet more.
Most often, a civil rights law is designed to protect a vulnerable minority from those in power. Read up on David's struggle versus Goliath when you swagger into a courtroom on behalf of the downtrodden. Arizona's law creates a crazy new dynamic: Are the cops not repressive enough? Then sue to make 'em snap the whip with more alacrity. The new law deprives police of discretion when applying one of the law's most amorphous standards -- reasonable suspicion.
There's a gold rush forming on in Arizona. Anyone out there care to enlighten me on how to seek admission to the courts of that state? Or better yet, any lawyers out there looking for experienced counsel in civil rights action to serve as of counsel in testing this law?
This law will not last long. Arizona can't afford it. In the meantime, I'm looking for cowboy boots and a hat. Yoo-hoo!
The Troubling Case of Roman Polanski
I was puzzled yesterday when I saw syndicated columnist George F. Will chortle on television about national sovereignty. He thinks that's what the people want. They want their government to feel secure in its power. Call Will a crypto-royalist.
Will was talking about Arizona's new immigration law, of which I will say more in another essay. For now, I'd like to test the Will thesis: Do we the people really give a hoot about sovereignty? The answer is, of course, yes, but we fear it when it is directed at us; we love it when it is directed at what we fear. Hence, leave my loved ones alone, but keep me free from meddling darkies sneaking across the border. Will, of course, is a churlish white guy; he has difficulty fathoming a world of lovable Mexicans.
This schizophrenic attitude is on display in the Roman Polanksi case.
Polanksi, you will recall, was convicted of raping a 13-year-old after liquoring her up. The party took place at Jack Nicholson's house. He pleaded guilty, and then fled the country before sentencing in 1978. He's not been back in the United States, so far as we know, since. We fear child rapists.
The film director has not been living in hiding these past thirty years. But California prosecutors only recently decided they needed to do something about Polanski's flight from justice. They seek extradition of Polanski to the United States.
But a funny thing happened along this twisting and turning road. The victim in this case, Sandi Gibbons, lost interest. Oh, it helps that she was paid a handsome settlement of her civil suit. The sum, though not confirmed as actually paid, is rumored to be $500,000. But more fundamentally, Ms. Gibbons just wants the whole sorry saga to be ended.
So Ms. Gibbons did what a crime victim has a right to do. She filed a petition in court. She told the California appeals court she wants the case against Polanski dismissed. She is the victim after all, right? And victims have a right to be heard, right? Don't we fear governments that forget the very people they serve?
But here is how it really works in most courtrooms in the United States: victims have a right to be heard, but the government has the right to decide. The admixture is a perverse abdication of responsibility by prosecutors.
I saw it first-hand again the other day. The prosecutor in a case I am handing was "open to the possibility of a walk" for my client. In other words, if the man entered a guilty plea, the state would consider no prison time. But first, the victim had to be consulted. When the victim wanted jail time, the state said it's hands were tied? Prison was now a requirement. Who is calling the shots in this case?
A prosecution pits the state against an individual accused of breaking the law. In most crimes, there is a victim. The victim, we say, has a right to be heard on the disposition of any case. But being heard is not the same as dictating terms. Many prosecutors simply do a victim's bidding. It is easier that way. There are fewer angry phone calls and meetings; less fuss come time for the annual review of a prosecutor's performance. Many, if not most, prosecutors play pimp to a victim's rage.
Doesn't the Polanski case disprove this rule? After all, the victim has been heard. Her plea has been considered. But the state is still acting. It's sovereignty has been injured. It needs its pound of flesh from a 76-year-old man.
This is where George Will's remark comes into focus. The state cares about sovereignty, it's power to act within the sphere of its influence. Attacking the state's sovereignty is like, well, taking a child's virginity. It is an insult not easily forgiven. The state must prove that its orders cannot be ignored. Polanski must be crushed.
But where Will is wrong is that the people aren't jealous to guard the sovereignty of the state. That jealousy belongs to the government. It will use anything to protect its power. The state will even turn on the people it serves.
Hence the paradox of the Polanski case. It pursued Polanski initially because of the harm it did to the victim. Presumably she and her family had input into the prosecution. The state then stood behind the angry family and told us all it was acting on their behalf. But when the victim lost interest, the state did not. Now the state stands alone telling the victim it know best. The state must act to vindicate its sovereignty.
I enjoy Polanski's films, but deplore his conduct with Gibbons. In a prudish way, I think less of Jack Nicholson, an actor an admire, merely because the rape took place in Nicholson's home. The ease with which I assign guilt by association startles me. But troubling as I find Polanski's behavior to be that conduct palls in comparison to the acts of the state of California, who use the victim just as much as did Polanski. He raped a girl in a private act of lust; California rapes her anew in a symbolic display of power.
Only fools, and George Will, love the state's desire to assert its sovereignty. The state is a fiction that can easily become all too real a menace when it forgets its function. Who is sovereign? We the people. We have constitutions to keep the state from getting to big for its britches and our comfort.
Will was talking about Arizona's new immigration law, of which I will say more in another essay. For now, I'd like to test the Will thesis: Do we the people really give a hoot about sovereignty? The answer is, of course, yes, but we fear it when it is directed at us; we love it when it is directed at what we fear. Hence, leave my loved ones alone, but keep me free from meddling darkies sneaking across the border. Will, of course, is a churlish white guy; he has difficulty fathoming a world of lovable Mexicans.
This schizophrenic attitude is on display in the Roman Polanksi case.
Polanksi, you will recall, was convicted of raping a 13-year-old after liquoring her up. The party took place at Jack Nicholson's house. He pleaded guilty, and then fled the country before sentencing in 1978. He's not been back in the United States, so far as we know, since. We fear child rapists.
The film director has not been living in hiding these past thirty years. But California prosecutors only recently decided they needed to do something about Polanski's flight from justice. They seek extradition of Polanski to the United States.
But a funny thing happened along this twisting and turning road. The victim in this case, Sandi Gibbons, lost interest. Oh, it helps that she was paid a handsome settlement of her civil suit. The sum, though not confirmed as actually paid, is rumored to be $500,000. But more fundamentally, Ms. Gibbons just wants the whole sorry saga to be ended.
So Ms. Gibbons did what a crime victim has a right to do. She filed a petition in court. She told the California appeals court she wants the case against Polanski dismissed. She is the victim after all, right? And victims have a right to be heard, right? Don't we fear governments that forget the very people they serve?
But here is how it really works in most courtrooms in the United States: victims have a right to be heard, but the government has the right to decide. The admixture is a perverse abdication of responsibility by prosecutors.
I saw it first-hand again the other day. The prosecutor in a case I am handing was "open to the possibility of a walk" for my client. In other words, if the man entered a guilty plea, the state would consider no prison time. But first, the victim had to be consulted. When the victim wanted jail time, the state said it's hands were tied? Prison was now a requirement. Who is calling the shots in this case?
A prosecution pits the state against an individual accused of breaking the law. In most crimes, there is a victim. The victim, we say, has a right to be heard on the disposition of any case. But being heard is not the same as dictating terms. Many prosecutors simply do a victim's bidding. It is easier that way. There are fewer angry phone calls and meetings; less fuss come time for the annual review of a prosecutor's performance. Many, if not most, prosecutors play pimp to a victim's rage.
Doesn't the Polanski case disprove this rule? After all, the victim has been heard. Her plea has been considered. But the state is still acting. It's sovereignty has been injured. It needs its pound of flesh from a 76-year-old man.
This is where George Will's remark comes into focus. The state cares about sovereignty, it's power to act within the sphere of its influence. Attacking the state's sovereignty is like, well, taking a child's virginity. It is an insult not easily forgiven. The state must prove that its orders cannot be ignored. Polanski must be crushed.
But where Will is wrong is that the people aren't jealous to guard the sovereignty of the state. That jealousy belongs to the government. It will use anything to protect its power. The state will even turn on the people it serves.
Hence the paradox of the Polanski case. It pursued Polanski initially because of the harm it did to the victim. Presumably she and her family had input into the prosecution. The state then stood behind the angry family and told us all it was acting on their behalf. But when the victim lost interest, the state did not. Now the state stands alone telling the victim it know best. The state must act to vindicate its sovereignty.
I enjoy Polanski's films, but deplore his conduct with Gibbons. In a prudish way, I think less of Jack Nicholson, an actor an admire, merely because the rape took place in Nicholson's home. The ease with which I assign guilt by association startles me. But troubling as I find Polanski's behavior to be that conduct palls in comparison to the acts of the state of California, who use the victim just as much as did Polanski. He raped a girl in a private act of lust; California rapes her anew in a symbolic display of power.
Only fools, and George Will, love the state's desire to assert its sovereignty. The state is a fiction that can easily become all too real a menace when it forgets its function. Who is sovereign? We the people. We have constitutions to keep the state from getting to big for its britches and our comfort.
Sunday, April 25, 2010
NPR Inches Closer To Endorsing Darrow For Supremes
Listen to National Public Radio's Scott Simon's recent commentary on diversity on the Supreme Court.
Gerry Darrow Gets His Own Website
I am a dreamer and often a fool. But I believe in Gerry Darrow and want to see him get a seat on the United States Supreme Court. Because I hope others out there do as well, I've created a separate web page for news and commentary about his campaign. It is called Who Is Gerry Darrow? Read, contribute, spread the word: Within our lifetime, we might actually see a trial lawyer on the Supreme Court.
Is It Jerome Or Gerry? Darrow's Checkered Past
Supreme Court nominee Gerry Darrow may really be Jerome Darrow, The Huffington Post reports. According to the Post, court records in New Britain, Connecticut, relay that Darrow's birth name was Jerome Darrow. He petitioned the probate court for a name change in 2004, changing his first name to Gerry.
Why a middle age man would change his name is just one of the questions that emerged in the wake of President Barack Obama's decision to name a virtual unknown to the nation's highest court. New and troubling questions also arise about whether Darrow was trying to distance himself from a past filled with financial and spiritual turmoil.
"The president stands behind Darrow, and had full knowledge of the nominee's name change," a White House spokesman said. "Indeed, before the nomination was announced, Mr. Darrow filled out a complete questionnaire answering all questions about his education, background and financial history. There is nothing unlawful about Darrow's change of name."
The Michigan native and Connecticut resident left the private practice of law to become a public defender in Connecticut in 2003. He was a high-flyer in the Southfield firm of Geoffrey Fieger, winning a series of multi-million verdicts in his first decade as a practicing lawyer. His income reportedly approached seven figures when he left his wife and two children in 2001.
Court records reveal that in the years before his divorce, the couple owned a 15,000-acre ranch in Montana and prime waterfront property in South Carolina. He dabbled in race horses, rare books and expensive wines.
"I didn't feel like much a people's lawyer when I was living so high on the hog," he said. "It seemed like there was never enough money. I wanted what we called [expletive] you money -- enough money to tell the Government to back off," he testified in a hearing before Superior Court Wanda S. Haustile, in the Wayne Family County Court in Michigan during a hearing on his financial means.
Darrow testified he underwent a spiritual crisis after attending a college for plaintiffs lawyers and criminal defense lawyers in DuBois, Wyoming, founded by legendary Wyoming lawyer Gerry Spence. Attending the college in 2000, he returned as a staff member for several years thereafter. In 2002, he liquidated his assets and donated them to the Trial Lawyers College, a non-profit entity devoted to the training of trial lawyers.
"I decided that if I was going to be a people's lawyer, I ought to live like one the people I was representing. It struck me as hypocritical to play populist rock star while living like a prince," Darrow told the court. Darrow declared bankruptcy two years later.
Frustrated creditors and Darrow's ex-wife challenged the disgorgement of his assets as little more than a fraudulent conveyance. Darrow's lawyer, S. Sam Ferris, defended the moves. "He retains no beneficial interest in the proceeds. His wife and children were adequately cared for in the divorce. The bankruptcy court found no fraudulent intent after extensive hearings."
A spokesman for the Trial Lawyer's College could not be reached for comment, and several other lawyers who attended the college with him spoke only on condition of anonymity. "Darrow fell hard for the college's stated mission of justice for ordinary folks. I saw the man weep one day. His tears seemed genuine," one classmate said.
"He said he planned to change his name to mark a fresh start in life. He chose Spence's name to honor the man who taught him so much," another said.
Gerry Spence could not be reached for comment.
News of the name change drew sharp commentary from the Republican Party. "The law's cardinal virtue is transparency. Not only do we not know what Gerry Darrow believes. Now we're not even sure what his real name is," said GOP spokesman Charlotte Harnes.
Others seemed non-plussed by the new revelations. "He seems more real to me for all this trouble in his life," said radio talk show host Colin McEnroe, whose daily talk show airs on National Public Radio in Connecticut.
Darrow now lives in a modest three-family ranch home in Plainville, Connecticut, a blue-collar town not far from the courthouse in New Britain, Connecticut, with his wife, a sergeant in the Connecticut State Police. Neighbors describe them as quiet, even reclusive. "The most frequent visitor to his home is the UPS truck delivering books," a neighbor said.
"More than a million Americans file for personal bankruptcy each year," said Wayne State University law professor Samuel Kitka. "Indeed, one of the first justices of the Supreme Court, James Wilson, had financial problems so severe he from time to time had to hide from his creditors. Mr. Darrow availed himself of a lawful remedy for personal distress. He's like many Americans who've needed a fresh start. I find it refreshing that the president chose a man real enough to admit failure for the high court."
For earlier coverage of Darrow's nomination to the Supreme Court click here, here.
Why a middle age man would change his name is just one of the questions that emerged in the wake of President Barack Obama's decision to name a virtual unknown to the nation's highest court. New and troubling questions also arise about whether Darrow was trying to distance himself from a past filled with financial and spiritual turmoil.
"The president stands behind Darrow, and had full knowledge of the nominee's name change," a White House spokesman said. "Indeed, before the nomination was announced, Mr. Darrow filled out a complete questionnaire answering all questions about his education, background and financial history. There is nothing unlawful about Darrow's change of name."
The Michigan native and Connecticut resident left the private practice of law to become a public defender in Connecticut in 2003. He was a high-flyer in the Southfield firm of Geoffrey Fieger, winning a series of multi-million verdicts in his first decade as a practicing lawyer. His income reportedly approached seven figures when he left his wife and two children in 2001.
Court records reveal that in the years before his divorce, the couple owned a 15,000-acre ranch in Montana and prime waterfront property in South Carolina. He dabbled in race horses, rare books and expensive wines.
"I didn't feel like much a people's lawyer when I was living so high on the hog," he said. "It seemed like there was never enough money. I wanted what we called [expletive] you money -- enough money to tell the Government to back off," he testified in a hearing before Superior Court Wanda S. Haustile, in the Wayne Family County Court in Michigan during a hearing on his financial means.
Darrow testified he underwent a spiritual crisis after attending a college for plaintiffs lawyers and criminal defense lawyers in DuBois, Wyoming, founded by legendary Wyoming lawyer Gerry Spence. Attending the college in 2000, he returned as a staff member for several years thereafter. In 2002, he liquidated his assets and donated them to the Trial Lawyers College, a non-profit entity devoted to the training of trial lawyers.
"I decided that if I was going to be a people's lawyer, I ought to live like one the people I was representing. It struck me as hypocritical to play populist rock star while living like a prince," Darrow told the court. Darrow declared bankruptcy two years later.
Frustrated creditors and Darrow's ex-wife challenged the disgorgement of his assets as little more than a fraudulent conveyance. Darrow's lawyer, S. Sam Ferris, defended the moves. "He retains no beneficial interest in the proceeds. His wife and children were adequately cared for in the divorce. The bankruptcy court found no fraudulent intent after extensive hearings."
A spokesman for the Trial Lawyer's College could not be reached for comment, and several other lawyers who attended the college with him spoke only on condition of anonymity. "Darrow fell hard for the college's stated mission of justice for ordinary folks. I saw the man weep one day. His tears seemed genuine," one classmate said.
"He said he planned to change his name to mark a fresh start in life. He chose Spence's name to honor the man who taught him so much," another said.
Gerry Spence could not be reached for comment.
News of the name change drew sharp commentary from the Republican Party. "The law's cardinal virtue is transparency. Not only do we not know what Gerry Darrow believes. Now we're not even sure what his real name is," said GOP spokesman Charlotte Harnes.
Others seemed non-plussed by the new revelations. "He seems more real to me for all this trouble in his life," said radio talk show host Colin McEnroe, whose daily talk show airs on National Public Radio in Connecticut.
Darrow now lives in a modest three-family ranch home in Plainville, Connecticut, a blue-collar town not far from the courthouse in New Britain, Connecticut, with his wife, a sergeant in the Connecticut State Police. Neighbors describe them as quiet, even reclusive. "The most frequent visitor to his home is the UPS truck delivering books," a neighbor said.
"More than a million Americans file for personal bankruptcy each year," said Wayne State University law professor Samuel Kitka. "Indeed, one of the first justices of the Supreme Court, James Wilson, had financial problems so severe he from time to time had to hide from his creditors. Mr. Darrow availed himself of a lawful remedy for personal distress. He's like many Americans who've needed a fresh start. I find it refreshing that the president chose a man real enough to admit failure for the high court."
For earlier coverage of Darrow's nomination to the Supreme Court click here, here.
Saturday, April 24, 2010
Is Tiger Woods A Sex Offender?
May's Vanity Fair is vintage soft porn. Accompanying Mark Seal's piece on Tiger Woods is a series of photographs of some of the golf legend's latest flames. Loredana Jolie Ferriolo bares her ass on a bed at the Walforf Astoria, the collagen in her lips trying, somehow, to say "come hither." Mindy Lawson's tongue nibbles a cherry and sits, looking about as appealing as a prison matron, in a red blouse all but open to a morals charge. And let's not forget the droopy chested Michelle Braun, who struts the hallway of the Breakers in Palm Beach, Florida.
But my favorite photo is that of Jamie Juners, snapped at the Cooper Hotel in New York City. I thought it was an advertisement at first, for an expensive fur shop. The sepia tones look like a shot for the New Yorker.
Sex sells, all right, and Tiger was buying. Spending $60,000 a weekend for the right girl didn't phase him, and why should it. He weighs his money. But the women who consented to be interviewed and photographed relay that Tiger is also cheap. No gifts for these babes. One recalls the only time Tiger ever bought her dinner. He was stopping at Subway. She asked him to pick up a wrap for her. He did, and then it was down to the wham-bam, thank-you- ma'am hustle of a man who cannot keep his pecker dry, even, apparently, for an evening.
It is a depressing read, even if it is, as is usually the case with a piece in Vanity Fair, wonderfully written.
In colonial times, back when adultery was a capital offense, Tiger might be swinging from a rope, together with Ms. Ferriolo. But times have changed. The 26-year-old has a world-class following of rich horn dogs who pay as much as $100,000 for an assignation. She is commonly ferried from one continent to another in private jets.
Tiger's skill with a golf club does not cross over to pick up lines. "You have a perfect body," he told Ms. Lawton on their first rutting. They were in the kitchen of his home. Tiger apparently liked trying out different locations in Windmere, Florida home. But the master bedroom was off limits. Respect for the sanctity of the marital sheets?
Ms. Lawton was as artless as Tiger. She took his penis in her hand in the glittering kitchen. "Wow," she tells Vanity Fair. "It was the biggest I've ever seen." Just how large was her survey?
A psychiatrist might struggle to figure out Tiger. He was married to a woman of legendary beauty, Elin Nordegren, who as a Swedish student was too busy to be bothered with glamor. You see, she has brains, too. She studied child psychology at Lund University in Scandinavia.
Tiger had wealth, a beautiful and intelligent wife, fame and power. So he tossed it all away chasing expensive call girls and women who marvel over comparative penis size. I don't quite get it.
Is he a sex offender? No. His tastes did not run to children or young women below the age of sixteen, the line the law now draws in lusts sandbox. But he is out of control: A libidinal train wreck. Tiger, you see, is the perfect example of a man who takes Madison Avenue literally.
There is a reason that Ms. Juner's come hither shot for Vanity Fair likes like the sort of advertisement that might appear in a tony Upper West Side magazine. She's the prize you are supposed to get if you succeed. Put your nose to the grindstone by day, and who knows where that nose won't go when the Sun, and, well ... goes down.
Tiger Woods is a tragic figure. But the tragedy is really an example of a culture gone haywire. Sex sells. We use it to motivate and inflame every consumer with hormones. Tiger had the money to make whores moan. No crime there, but it is morally tawdry.
I can't tell whether to pity or envy Tiger. Sure, he's lost everything of enduring value. His wife has left him, and taken their children. He is the laughing stock of the world, known as a hypocrite. But, when the lights go down, he takes the red dog walking in ways that, frankly, makes me smirk. He's what a middle aged man would be like if he lived in fraternity houses while running Goldman Sachs. The idea of living in a world without consequences appeals in a midnight, adolescent sort of way.
Tiger Woods is a sex offender. His lust is out of control. The law won't punish him, at least I've not yet heard of a warrant for soliciting prostitution. But the law's lines are arbitrarily drawn. The Puritans would have spanked him but good.
I'd like to see a poll about what college-age males really think of Tiger. I suspect in many quarters, he's more admired than ever. After all, he can buy as much sex as we can sell, and then sell stories about it magazines replete with glossy pictures. He got caught doing what the rest of us are supposed to dream about.
Tiger a sex offender? You bet. And so are the rest of us.
But my favorite photo is that of Jamie Juners, snapped at the Cooper Hotel in New York City. I thought it was an advertisement at first, for an expensive fur shop. The sepia tones look like a shot for the New Yorker.
Sex sells, all right, and Tiger was buying. Spending $60,000 a weekend for the right girl didn't phase him, and why should it. He weighs his money. But the women who consented to be interviewed and photographed relay that Tiger is also cheap. No gifts for these babes. One recalls the only time Tiger ever bought her dinner. He was stopping at Subway. She asked him to pick up a wrap for her. He did, and then it was down to the wham-bam, thank-you- ma'am hustle of a man who cannot keep his pecker dry, even, apparently, for an evening.
It is a depressing read, even if it is, as is usually the case with a piece in Vanity Fair, wonderfully written.
In colonial times, back when adultery was a capital offense, Tiger might be swinging from a rope, together with Ms. Ferriolo. But times have changed. The 26-year-old has a world-class following of rich horn dogs who pay as much as $100,000 for an assignation. She is commonly ferried from one continent to another in private jets.
Tiger's skill with a golf club does not cross over to pick up lines. "You have a perfect body," he told Ms. Lawton on their first rutting. They were in the kitchen of his home. Tiger apparently liked trying out different locations in Windmere, Florida home. But the master bedroom was off limits. Respect for the sanctity of the marital sheets?
Ms. Lawton was as artless as Tiger. She took his penis in her hand in the glittering kitchen. "Wow," she tells Vanity Fair. "It was the biggest I've ever seen." Just how large was her survey?
A psychiatrist might struggle to figure out Tiger. He was married to a woman of legendary beauty, Elin Nordegren, who as a Swedish student was too busy to be bothered with glamor. You see, she has brains, too. She studied child psychology at Lund University in Scandinavia.
Tiger had wealth, a beautiful and intelligent wife, fame and power. So he tossed it all away chasing expensive call girls and women who marvel over comparative penis size. I don't quite get it.
Is he a sex offender? No. His tastes did not run to children or young women below the age of sixteen, the line the law now draws in lusts sandbox. But he is out of control: A libidinal train wreck. Tiger, you see, is the perfect example of a man who takes Madison Avenue literally.
There is a reason that Ms. Juner's come hither shot for Vanity Fair likes like the sort of advertisement that might appear in a tony Upper West Side magazine. She's the prize you are supposed to get if you succeed. Put your nose to the grindstone by day, and who knows where that nose won't go when the Sun, and, well ... goes down.
Tiger Woods is a tragic figure. But the tragedy is really an example of a culture gone haywire. Sex sells. We use it to motivate and inflame every consumer with hormones. Tiger had the money to make whores moan. No crime there, but it is morally tawdry.
I can't tell whether to pity or envy Tiger. Sure, he's lost everything of enduring value. His wife has left him, and taken their children. He is the laughing stock of the world, known as a hypocrite. But, when the lights go down, he takes the red dog walking in ways that, frankly, makes me smirk. He's what a middle aged man would be like if he lived in fraternity houses while running Goldman Sachs. The idea of living in a world without consequences appeals in a midnight, adolescent sort of way.
Tiger Woods is a sex offender. His lust is out of control. The law won't punish him, at least I've not yet heard of a warrant for soliciting prostitution. But the law's lines are arbitrarily drawn. The Puritans would have spanked him but good.
I'd like to see a poll about what college-age males really think of Tiger. I suspect in many quarters, he's more admired than ever. After all, he can buy as much sex as we can sell, and then sell stories about it magazines replete with glossy pictures. He got caught doing what the rest of us are supposed to dream about.
Tiger a sex offender? You bet. And so are the rest of us.
Asparagus, Peas and Rhubarb
For many years, I worked seven days a week. A few years ago, my wife and I decided to take Saturdays off. We're secular sorts. But it is still a Sabbath. The time we spend together is the best part of the week. Especially in the Spring, when it is time to prepare the gardens for Spring planting.
We traveled a lot last year, and the vegetable garden shows it now. We use raised beds. We've ten of them active now, each 20 feet by four feet. I removed the sod by hand from the area six or so years ago, and then dug rows between the beds. Over the years we've planted most common vegetables. I didn't prepare the garden for a Winter's rest last year. I was distracted. So my back hurts today from labor that must be done.
The peas go in around St. Patrick's Day, and they are always a challenge. This was a wet Spring. Drenching rains washed out a row, so we replanted them. I've got a net staked to several poles in the bed we devote to peas. This morning I made sure that some of the healthier plants had tendrils attached to the nets. The plants will grow to six feet in height, providing peas for the Summer.
As I was pulling some weeds that found their way into the pea's bed, I couldn't help think of Thoreau's Walden. I read the book early in high school. We lived in Detroit, a place generally inhospitable to nourishing greenery, at least back then. Now that the city is crumbling into third world desuetude, things do grow wild there. But they didn't when I was a teenager.
Something about the case Thoreau lavished on his first crop of peas, and the hope represented by the turning of the Earth, grabbed me and has not let go all these many years later. Each summer presents a different challenge. Our first summer a fungus wiped out pumpkins, yet somehow spared the squash. I am ignorant in the ways of soil and weather. I read haphazardly and slowly my fund of knowledge grows. Did you know there are about 300 species of asparagus, or liliaceae?
But I am learning. It was pure pleasure today to rebuilt several beds with the well-aged leavings of a chicken coop. The soil was rich, dark, laden with Earth worms. We've been eating asparagus for several weeks now. The shoots spring aggressively, an early herald of Spring. It is as if they want to get all the growing they'd do done before the Sun rises too high in the sky with scorching heat.
Weeding an asparagus bed is a surgeon's work. The underground root system is complex, and easily damaged. It appears I destroyed one bed last year in too aggressive weeding. I mulled the silent death and berated myself for carelessness. But the weather today was perfect. There was no time for self-recrimination or self-pity. As I removed dead roots and prepared the bed for strawberries, I kept thinking of a piece Marcus Schantz wrote last night. A jury returned a quick verdict against his client in a murder case. Marcus was distraught; failure weighed heavily. I know that feeling of lost hope. Gardening is good therapy, though; last year's failures are behind me. The Earth and the Sun beckon. It is time to plant a new crop and learn to harvest it.
As always, our rhubarb bounds along as though there were no challenge in making things grow. It is only mid-April, we're still a month from freedom from frost, and already the plants are four feet tall. Moist red stalks will soon be the stuff of compote, a sweet-sour treat we eat over and over again with delight. These plants are like gods to us. My wife's father, dead now twenty years, started them from seeds. We transplanted several when we started our garden. It is pleasing to think that Paul feeds us still. Although he's gone, I still want to "thank you" to him.
I'm several days away from having fully prepared for the Spring planting. Two or three Saturday's should do the trick. And then comes the nervous husbandry of a long, hot Summer. Each year brings a new challenge. Sometimes there is sweet success, the tomatoes and carrots never fail; sometimes we fail and are disappointed -- after several summers of lavish beets, our stews were without them this fall. But we grow fantastic turnips. I am looking forward with hope to them again this year.
I am glad it is Spring, and I am even happier to reacquaint myself with the thousand and one challenges of a garden. Perhaps it's time to re-read Walden. I cannot imagine a Spring without warm, moist soil.
We traveled a lot last year, and the vegetable garden shows it now. We use raised beds. We've ten of them active now, each 20 feet by four feet. I removed the sod by hand from the area six or so years ago, and then dug rows between the beds. Over the years we've planted most common vegetables. I didn't prepare the garden for a Winter's rest last year. I was distracted. So my back hurts today from labor that must be done.
The peas go in around St. Patrick's Day, and they are always a challenge. This was a wet Spring. Drenching rains washed out a row, so we replanted them. I've got a net staked to several poles in the bed we devote to peas. This morning I made sure that some of the healthier plants had tendrils attached to the nets. The plants will grow to six feet in height, providing peas for the Summer.
As I was pulling some weeds that found their way into the pea's bed, I couldn't help think of Thoreau's Walden. I read the book early in high school. We lived in Detroit, a place generally inhospitable to nourishing greenery, at least back then. Now that the city is crumbling into third world desuetude, things do grow wild there. But they didn't when I was a teenager.
Something about the case Thoreau lavished on his first crop of peas, and the hope represented by the turning of the Earth, grabbed me and has not let go all these many years later. Each summer presents a different challenge. Our first summer a fungus wiped out pumpkins, yet somehow spared the squash. I am ignorant in the ways of soil and weather. I read haphazardly and slowly my fund of knowledge grows. Did you know there are about 300 species of asparagus, or liliaceae?
But I am learning. It was pure pleasure today to rebuilt several beds with the well-aged leavings of a chicken coop. The soil was rich, dark, laden with Earth worms. We've been eating asparagus for several weeks now. The shoots spring aggressively, an early herald of Spring. It is as if they want to get all the growing they'd do done before the Sun rises too high in the sky with scorching heat.
Weeding an asparagus bed is a surgeon's work. The underground root system is complex, and easily damaged. It appears I destroyed one bed last year in too aggressive weeding. I mulled the silent death and berated myself for carelessness. But the weather today was perfect. There was no time for self-recrimination or self-pity. As I removed dead roots and prepared the bed for strawberries, I kept thinking of a piece Marcus Schantz wrote last night. A jury returned a quick verdict against his client in a murder case. Marcus was distraught; failure weighed heavily. I know that feeling of lost hope. Gardening is good therapy, though; last year's failures are behind me. The Earth and the Sun beckon. It is time to plant a new crop and learn to harvest it.
As always, our rhubarb bounds along as though there were no challenge in making things grow. It is only mid-April, we're still a month from freedom from frost, and already the plants are four feet tall. Moist red stalks will soon be the stuff of compote, a sweet-sour treat we eat over and over again with delight. These plants are like gods to us. My wife's father, dead now twenty years, started them from seeds. We transplanted several when we started our garden. It is pleasing to think that Paul feeds us still. Although he's gone, I still want to "thank you" to him.
I'm several days away from having fully prepared for the Spring planting. Two or three Saturday's should do the trick. And then comes the nervous husbandry of a long, hot Summer. Each year brings a new challenge. Sometimes there is sweet success, the tomatoes and carrots never fail; sometimes we fail and are disappointed -- after several summers of lavish beets, our stews were without them this fall. But we grow fantastic turnips. I am looking forward with hope to them again this year.
I am glad it is Spring, and I am even happier to reacquaint myself with the thousand and one challenges of a garden. Perhaps it's time to re-read Walden. I cannot imagine a Spring without warm, moist soil.
Friday, April 23, 2010
Playing Nice In My Sandbox
I enjoy vigorous and bold debate. But folks if you are going to post comments here, please don't call people drunks, perverts, etc., unless such claims are a matter of public record. I've had to avoid publishing several otherwise very good comments because they crossed that line.
Originalism Is High-Fallutin' Feces
Read this Slate piece about why right's ballyhoo about judicial activism is hogwash, and why "originalism" is the most dangerous form of "activism." Slate
Hat Tip: My Wife
Hat Tip: My Wife
Decoding "Jingo Jeff" Sessions
I'd like to ask a question or two under oath, if you don't mind. Answer them quickly, and without guile.
Q. Where were you born?
A. Toledo.
Objection: Foundation. you cannot know this without having been told by others. The answer necessarily calls for hearsay.
Q. When were you born?
A. 1980.
Objection: Foundation. Same objection as to previous question.
This sort of silliness rarely occurs in a courtroom. We know better. While the objections are technically correct in form, we silently place the burden of disproving certain assertions on the party with an interest in contesting the claim. Who, after all, would be foolish enough to lie about their place of birth in a matter of consequence?
The truth is, none of us possess personal knowledge of our place and date of birth. Such information as we relay necessarily comes from others. Such is life. The claims of reason when pressed to the point of philosophic or legalistic perfection can bring life to a halt. Reason alone, for example, gives me no confidence that the Sun will appear in the heavens tomorrow. I trust experience for that confidence.
But some Arizonans feels like they got hoodwinked in the last presidential election. So a new state law requires folks running for president to present their birth certificate to state officials before their name can be placed on the ballot. Let's decode this legislation.
President Obama is a black man. He will never be president of the hearts and minds of certain segments of the desert in Arizona. What's more, he was born in Hawaii. That's not part of the Continental United States. Depending on how strictly you interpret the Constitution he might be a foreigner incapable of serving. For all some Arizonans know, Obama was born in Africa. He's a sleeper cell for the Third World, come to bring us AIDS, hunger and perhaps a plague of locusts. At the very least, he's a socialist.
It's not just Obama, mind you. It's all these brown and funny-sounding folks slipping over our borders. They speak Spanish, most of 'em. Can't build no wall high enough to keep 'em out. The nation is awash in illegal immigrants. I mean, it's one thing to slap some chains on some hapless n...... wandering along the Ivory Coast and then tossing their sorry asses into a slave ship's hold. Bring 'em over to work the cotton fields. But keep track of 'em. We just can't let these kind of people in the country on their own terms. Lord 'amighty, one of the darkies might just wanna marry your daughter.
This inchoate racial hatred and brutish prejudice has found a spokesman in United States Senator Jeff Sessions, a federal court reject now living the sweet dream of revenge while sitting on the Senate Judiciary Committee and peppering judicial nominees with questions. Is Jingo Jeff really up to the task?
When asked about Arizona's new law imposing quirky requirements on presidential candidates, Sessions saw no problem at all. He still relishes the chaos wrought by Bush v. Gore. Scott Greenfield has already demolished the constitutional premises on which Jingo Jeff's fantasy rests.
If anyone at any point in the 2008 election had a serious question about whether Barack Obama met the Constitution's requirement that a President be born in the United States, that person could have appeared in any court of competent jurisdiction to raise a claim. Sure, there might be standing issues, but I suspect a court would adjudicate the issue merely to kill it. We needn't fear 200 million lawsuits. A fully litigated claim or two would have put the issue to rest once and for all.
Instead we get legislation such as Arizona's. The law is really simply a political rallying cry for jingoists, racists and xenophobes. (Translated: Folks who don't like native born white people.) It's the sort of thing in which the Grand Dragon of the Ku Klux Klan would take pride.
Jingo Jeff Sessions may well speak for a vision of the United States in which folks of all sorts know their place. But he doesn't have the courage to speak his convictions. Instead he speaks in code.
I shudder when I think that the Senate has placed the job of vetting candidates for the federal courts in the hands of men like Jingo Jeff. Let's watch the confirmation hearings for the next Supreme Court Justice carefully and decode what this red-neck loser is really saying. Is Jingo Jeff really fit to evaluate a candidate for the high court?
Q. Where were you born?
A. Toledo.
Objection: Foundation. you cannot know this without having been told by others. The answer necessarily calls for hearsay.
Q. When were you born?
A. 1980.
Objection: Foundation. Same objection as to previous question.
This sort of silliness rarely occurs in a courtroom. We know better. While the objections are technically correct in form, we silently place the burden of disproving certain assertions on the party with an interest in contesting the claim. Who, after all, would be foolish enough to lie about their place of birth in a matter of consequence?
The truth is, none of us possess personal knowledge of our place and date of birth. Such information as we relay necessarily comes from others. Such is life. The claims of reason when pressed to the point of philosophic or legalistic perfection can bring life to a halt. Reason alone, for example, gives me no confidence that the Sun will appear in the heavens tomorrow. I trust experience for that confidence.
But some Arizonans feels like they got hoodwinked in the last presidential election. So a new state law requires folks running for president to present their birth certificate to state officials before their name can be placed on the ballot. Let's decode this legislation.
President Obama is a black man. He will never be president of the hearts and minds of certain segments of the desert in Arizona. What's more, he was born in Hawaii. That's not part of the Continental United States. Depending on how strictly you interpret the Constitution he might be a foreigner incapable of serving. For all some Arizonans know, Obama was born in Africa. He's a sleeper cell for the Third World, come to bring us AIDS, hunger and perhaps a plague of locusts. At the very least, he's a socialist.
It's not just Obama, mind you. It's all these brown and funny-sounding folks slipping over our borders. They speak Spanish, most of 'em. Can't build no wall high enough to keep 'em out. The nation is awash in illegal immigrants. I mean, it's one thing to slap some chains on some hapless n...... wandering along the Ivory Coast and then tossing their sorry asses into a slave ship's hold. Bring 'em over to work the cotton fields. But keep track of 'em. We just can't let these kind of people in the country on their own terms. Lord 'amighty, one of the darkies might just wanna marry your daughter.
This inchoate racial hatred and brutish prejudice has found a spokesman in United States Senator Jeff Sessions, a federal court reject now living the sweet dream of revenge while sitting on the Senate Judiciary Committee and peppering judicial nominees with questions. Is Jingo Jeff really up to the task?
When asked about Arizona's new law imposing quirky requirements on presidential candidates, Sessions saw no problem at all. He still relishes the chaos wrought by Bush v. Gore. Scott Greenfield has already demolished the constitutional premises on which Jingo Jeff's fantasy rests.
If anyone at any point in the 2008 election had a serious question about whether Barack Obama met the Constitution's requirement that a President be born in the United States, that person could have appeared in any court of competent jurisdiction to raise a claim. Sure, there might be standing issues, but I suspect a court would adjudicate the issue merely to kill it. We needn't fear 200 million lawsuits. A fully litigated claim or two would have put the issue to rest once and for all.
Instead we get legislation such as Arizona's. The law is really simply a political rallying cry for jingoists, racists and xenophobes. (Translated: Folks who don't like native born white people.) It's the sort of thing in which the Grand Dragon of the Ku Klux Klan would take pride.
Jingo Jeff Sessions may well speak for a vision of the United States in which folks of all sorts know their place. But he doesn't have the courage to speak his convictions. Instead he speaks in code.
I shudder when I think that the Senate has placed the job of vetting candidates for the federal courts in the hands of men like Jingo Jeff. Let's watch the confirmation hearings for the next Supreme Court Justice carefully and decode what this red-neck loser is really saying. Is Jingo Jeff really fit to evaluate a candidate for the high court?
Thursday, April 22, 2010
Whoa! The WSJ Selling The Apocalypse?
No court this afternoon, so I stole some time to read a back issue of the Wall Street Journal. A good friend of mine who is a former federal prosecutor tried to explain to me earlier in the week why the SEC's prosecution of Goldman Sachs was a crock of ... well, feces. So I struggled through the financial pages trying hard to understand.
As I was getting set to toss the paper, I noticed a teal blue page with digital print almost an inch tall. "THE END IS HERE," IT READ. I unfolded the paper and saw that The Wall Street Journal had carried a full-page advertisement for the new Tim LaHaye book, Edge of Apocalypse.
"North Korean missiles have been launched. They will devastate Manhattan in 14 minutes. And that is only the begininng. ... This riveting first book of The End Series takes readers on a spectacular thrill ride that's been foretold for centuries and is playing out in today's headlines," the copy read. The ad sports a web URL. The first chapter of the book is already on Twitter.
I suppose I should not find it odd that the financial industry's paper of record, shall we call it the Grey Esquire?, would feature a book about doom, gloom and the end of the world. Wall Street is the sort of place, we've learned, where betting on failure is profitable business. But I've always regarded LaHaye as something of a crackpot.
Of course, I have never read LaHaye, and as I sat pondering the ad my curiosity was piqued. In a flash, I ordered a digital copy to be delivered to my Kindle. Every litigator knows that life is nasty, brutish and mighty dull in most courthouses, most days. The next time I am forced to sit and wait for the wheels of justice to begin turning, I plan to while away the time with LaHaye.
Apocalyptic literature strikes me as a fantastic portal into the collective unconscious. We are story tellers by nature. The ends we conceive in fantasy speak volumes about the lives we lead and the commitments we are prepared to make. I'll report soon on what LaHaye teaches about common culture. Whether a crank or not, he's got a large body of readers.
I wonder if he is required reading in product development at Goldman Sachs?
UPDATE: The link was only to the first four chapters. The work is entirely plot-driven; sort of like Jack Ryan meets Jesus at Starbucks. Chapters one through four set a hook, though. Can New York be saved from impending doom? The writing is not very engaging, but doom and gloom sells.
As I was getting set to toss the paper, I noticed a teal blue page with digital print almost an inch tall. "THE END IS HERE," IT READ. I unfolded the paper and saw that The Wall Street Journal had carried a full-page advertisement for the new Tim LaHaye book, Edge of Apocalypse.
"North Korean missiles have been launched. They will devastate Manhattan in 14 minutes. And that is only the begininng. ... This riveting first book of The End Series takes readers on a spectacular thrill ride that's been foretold for centuries and is playing out in today's headlines," the copy read. The ad sports a web URL. The first chapter of the book is already on Twitter.
I suppose I should not find it odd that the financial industry's paper of record, shall we call it the Grey Esquire?, would feature a book about doom, gloom and the end of the world. Wall Street is the sort of place, we've learned, where betting on failure is profitable business. But I've always regarded LaHaye as something of a crackpot.
Of course, I have never read LaHaye, and as I sat pondering the ad my curiosity was piqued. In a flash, I ordered a digital copy to be delivered to my Kindle. Every litigator knows that life is nasty, brutish and mighty dull in most courthouses, most days. The next time I am forced to sit and wait for the wheels of justice to begin turning, I plan to while away the time with LaHaye.
Apocalyptic literature strikes me as a fantastic portal into the collective unconscious. We are story tellers by nature. The ends we conceive in fantasy speak volumes about the lives we lead and the commitments we are prepared to make. I'll report soon on what LaHaye teaches about common culture. Whether a crank or not, he's got a large body of readers.
I wonder if he is required reading in product development at Goldman Sachs?
UPDATE: The link was only to the first four chapters. The work is entirely plot-driven; sort of like Jack Ryan meets Jesus at Starbucks. Chapters one through four set a hook, though. Can New York be saved from impending doom? The writing is not very engaging, but doom and gloom sells.
Chatigny Vote Could Be Today. A Final Question
It is sadly inevitable. United States District Court Judge Robert N. Chatigny will be approved by the Senate Judiciary Committee for a seat on the Second Circuit Court of Appeals. I am told this by folks who pretend to know such things. The vote on his nomination could be as early as today.
I am not a fan of Judge Chatigny's. He's been a district court judge in Connecticut more many years. But when he took the bench, he had never tried a case to a verdict. While there is nothing wrong with learning by doing, I found his demeanor and manner on the bench stiff, unwelcoming, even bizarre. He thought likewise or worse of me, and declined, after several trials, to sit on my cases any longer.
When I tried to find out what other lawyers had found their way on to the judge's banishment list, the Court clerk told me such information was not public. It is protected by the Freedom of Information Act. Oh, that lawyers had the same privilege of secretly requesting that their cases not be heard by judges in whom they had no confidence. Power has its perquisites.
Judge Chatigny's nomination was stalled when a member of Connecticut's Chief State's Attorney's Office wrote to the Senate Judiciary Committee complaining of the judge's high-handed ways in post-conviction proceedings for Michael Ross. Ross had elected, after almost two decades of legal wrangling, to die. He wanted no further action taken on his behalf. So he obtained counsel to protect what amounted to his right to die.
Federal writs flew, and they landed on Chatigny's desk. The judge was chief judge of the district at the time, so their arrival in that chambers was no doubt intended. But wait? Hadn't the judge once filed a brief pleading on behalf of Mr. Ross when he was in private practice? The judge forgot all about it, he later claimed. But he was every bit the advocate for Mr. Ross on the bench, threatening Ross's lawyer with disbarment at one point in the proceeding. Friends who were on that conference call, including a lawyer for one of Mr. Ross's relatives, called me incredulous at the judge's behavior.
But all is, apparently, forgiven. The Second Circuit disposed of the grievance filed against the judge with a wink and a nod. And now three prominent Republicans have written a letter singing the praises of Judge Chatigny. Former United States District Judge Alan Nevas, and former U.S. Attorney's Stan Twardy and Kevin O'Connor have written to the judiciary committee to demonstrate bipartisan support.
This trio of barristers, I call them the "Do I Dare To Eat A Peach Club," means well. Connecticut's federal bar is a close-knit, clubby fraternity. (More men than women still, I suspect, but call it a sorority if it suits you.) But their praise of the man has the hollow ring of toasts at a wedding dinner. What did you expect these power brokers to say? Chatigny is, after all, a member their club. I have only once attended a meeting of the federal bar club, despite have tried scores of cases in the Connecticut federal courts. I was a stranger in an even stranger land; I won't be returning.
The Connecticut Post reported yesterday that the Senate may act on Chatigny's nomination as early as today. Expect a few barbs and then approval.
But before anyone rubber stamps him, will one of the Senators at least assign a clerk the task of reading a case captioned Lee v. Edwards? This is a Second Circuit decision from the mid-nineties. Chatigny sat by designation on that panel.
In Lee, a jury awarded a man a verdict of $200,000, after trial in a malicious prosecution case. The defendant was a police officer. At trial, the lawyer for the police officer stipulated that the defendant's municipal employer would pay any award of damages, thus making moot whether the officer had the capacity to pay the sum.
The Second Circuit remitted the verdict, reducing it to $75,000. Why? Everyone knows police officers don't have that kind of money. Huh? There was no evidence of capacity to pay in the record. Counsel stipulated the City would pay. Why make up facts that either are not in the record or are not even relevant as the issues were framed?
The case was mine on trial and on appeal. I wanted to file a petition for certiorari. hadn't the panel gone outside the record? This was wrong, I railed. My partner at the time, John Williams, counseled despair. "The Court will never hear it. Judges love cops, and will do almost anything to protect them."
Someone on the Senate please ask Chatigny about this case. Even more than a decade later the decision in Lee v. Edwards strikes me as lawless. Why don't folks complain about judicial activism when it serves those in power?
Note: More on Chatigny. See Don Pesci.
I am not a fan of Judge Chatigny's. He's been a district court judge in Connecticut more many years. But when he took the bench, he had never tried a case to a verdict. While there is nothing wrong with learning by doing, I found his demeanor and manner on the bench stiff, unwelcoming, even bizarre. He thought likewise or worse of me, and declined, after several trials, to sit on my cases any longer.
When I tried to find out what other lawyers had found their way on to the judge's banishment list, the Court clerk told me such information was not public. It is protected by the Freedom of Information Act. Oh, that lawyers had the same privilege of secretly requesting that their cases not be heard by judges in whom they had no confidence. Power has its perquisites.
Judge Chatigny's nomination was stalled when a member of Connecticut's Chief State's Attorney's Office wrote to the Senate Judiciary Committee complaining of the judge's high-handed ways in post-conviction proceedings for Michael Ross. Ross had elected, after almost two decades of legal wrangling, to die. He wanted no further action taken on his behalf. So he obtained counsel to protect what amounted to his right to die.
Federal writs flew, and they landed on Chatigny's desk. The judge was chief judge of the district at the time, so their arrival in that chambers was no doubt intended. But wait? Hadn't the judge once filed a brief pleading on behalf of Mr. Ross when he was in private practice? The judge forgot all about it, he later claimed. But he was every bit the advocate for Mr. Ross on the bench, threatening Ross's lawyer with disbarment at one point in the proceeding. Friends who were on that conference call, including a lawyer for one of Mr. Ross's relatives, called me incredulous at the judge's behavior.
But all is, apparently, forgiven. The Second Circuit disposed of the grievance filed against the judge with a wink and a nod. And now three prominent Republicans have written a letter singing the praises of Judge Chatigny. Former United States District Judge Alan Nevas, and former U.S. Attorney's Stan Twardy and Kevin O'Connor have written to the judiciary committee to demonstrate bipartisan support.
This trio of barristers, I call them the "Do I Dare To Eat A Peach Club," means well. Connecticut's federal bar is a close-knit, clubby fraternity. (More men than women still, I suspect, but call it a sorority if it suits you.) But their praise of the man has the hollow ring of toasts at a wedding dinner. What did you expect these power brokers to say? Chatigny is, after all, a member their club. I have only once attended a meeting of the federal bar club, despite have tried scores of cases in the Connecticut federal courts. I was a stranger in an even stranger land; I won't be returning.
The Connecticut Post reported yesterday that the Senate may act on Chatigny's nomination as early as today. Expect a few barbs and then approval.
But before anyone rubber stamps him, will one of the Senators at least assign a clerk the task of reading a case captioned Lee v. Edwards? This is a Second Circuit decision from the mid-nineties. Chatigny sat by designation on that panel.
In Lee, a jury awarded a man a verdict of $200,000, after trial in a malicious prosecution case. The defendant was a police officer. At trial, the lawyer for the police officer stipulated that the defendant's municipal employer would pay any award of damages, thus making moot whether the officer had the capacity to pay the sum.
The Second Circuit remitted the verdict, reducing it to $75,000. Why? Everyone knows police officers don't have that kind of money. Huh? There was no evidence of capacity to pay in the record. Counsel stipulated the City would pay. Why make up facts that either are not in the record or are not even relevant as the issues were framed?
The case was mine on trial and on appeal. I wanted to file a petition for certiorari. hadn't the panel gone outside the record? This was wrong, I railed. My partner at the time, John Williams, counseled despair. "The Court will never hear it. Judges love cops, and will do almost anything to protect them."
Someone on the Senate please ask Chatigny about this case. Even more than a decade later the decision in Lee v. Edwards strikes me as lawless. Why don't folks complain about judicial activism when it serves those in power?
Note: More on Chatigny. See Don Pesci.
Prayers In Lancaster, California?
I’ve never been to Lancaster, California, and the fault is mine. A good friend is now mayor. He’s also a personal injury lawyer with a big shop. I had a standing invitation to come visit him in Lancaster for many years, but I never made the trip. Now I am half-hoping my friend calls me to ask me to defend him.
R. Rex Parris was elected last week to a second term as mayor of Lancaster. It’s a desert town of about 150,000 people some 70 miles from Los Angeles. The day he was elected, voters also approved a measure that permits the town council to open meetings with prayer. The press out there is muttering that folks have been invoking the name of Jesus before town meetings. The American Civil Liberties Union is aching to file suit.
Parris is defiant. "There are few places I am more comfortable than in a courtroom," he boasts. And his boast is not without foundation. He’s knocked back some big verdicts and settlements in personal injury and class action consumer cases. But as near as I can tell, Rex has thus far left constitutional issues alone. He’s now smack dab in the middle of a constitutional dispute.
Months before the election, Parris caused a furor when he told a group of assembled clerics that Lancaster was "growing a Christian community." What about us?," Moslem community members cried. Parris retracted the remark, and wisely so.
The Lancaster prayer ordinance does not specify what deity, if any deity at all, must be invoked. The town is not impressing upon residents orthodoxy. The right to offer the prayer rotates among participants. Nothing stops the likes of me from asking for a moment of silent in deference to the chaos from which we sprang to and to which we return.
Frankly, I have only a dim comprehension of the need for ceremony to open a public event. I suppose I’ve been a lawyer long enough now to accept the odd affectations with which we open court. We are commanded to stand as the judge enters the room. Robes aflutter like some Mosaic figure descending Sinai, the judge enters. A marshal rattles through an admonition to heed the proceedings, and off we go. I suppose it is more decorous than "play ball!"
In truth, however, even baseball games open with more than is really necessary. Why the national anthem? Why do we all stand, hands placed over our hearts and mouth just enough of the words of the anthem to assure our neighbors we’re not al Qaeda? Ceremony, it seems, is good. We need ceremony.
So if Lancaster chooses to open its town meetings by permitting folks to invoke the deity of their choice, what’s the harm? Sure, it has a sad, sort of twelve-step feel to it, but we all struggle against the darkness the best we can. Go ahead and ask for light. We are seekers all, whether we care to admit it or not.
I was stung recently by the loss of a criminal trial. So stunned, in fact, that I re-read Martin Buber’s I and Thou. Buber was a Jewish theologian. He felt much sacrilege was done in the name of God. In I and Thou he set about making the world safe for reverence. His point, simply put, is this: Wonder defines us. We confront the world, each of us, with meager resources. Remaining open to the presence in the world of an unknowable other, whether that other be in the form of the person sitting across the room, or the forces that brought the world into being, is a source of spiritual vitality. We need, Buber reminds, to make room for the possibility of awe. There is no shame in marveling over the mystery of simply being alive.
And so the good folks of Lancaster will set about doing so at their town meanings. Some of them will offer prayers to folks and deities that defy rational comprehension. Some may offer silence, my preference, in the face of what can only be accepted, and never really known. This strikes me as a long, long way from spiritual totalitarianism. It looks a little like health. The battle in Lancaster is well worth watching.
Good luck, Rex.
Reprinted courtesy of the Connecticut Law Tribune.
R. Rex Parris was elected last week to a second term as mayor of Lancaster. It’s a desert town of about 150,000 people some 70 miles from Los Angeles. The day he was elected, voters also approved a measure that permits the town council to open meetings with prayer. The press out there is muttering that folks have been invoking the name of Jesus before town meetings. The American Civil Liberties Union is aching to file suit.
Parris is defiant. "There are few places I am more comfortable than in a courtroom," he boasts. And his boast is not without foundation. He’s knocked back some big verdicts and settlements in personal injury and class action consumer cases. But as near as I can tell, Rex has thus far left constitutional issues alone. He’s now smack dab in the middle of a constitutional dispute.
Months before the election, Parris caused a furor when he told a group of assembled clerics that Lancaster was "growing a Christian community." What about us?," Moslem community members cried. Parris retracted the remark, and wisely so.
The Lancaster prayer ordinance does not specify what deity, if any deity at all, must be invoked. The town is not impressing upon residents orthodoxy. The right to offer the prayer rotates among participants. Nothing stops the likes of me from asking for a moment of silent in deference to the chaos from which we sprang to and to which we return.
Frankly, I have only a dim comprehension of the need for ceremony to open a public event. I suppose I’ve been a lawyer long enough now to accept the odd affectations with which we open court. We are commanded to stand as the judge enters the room. Robes aflutter like some Mosaic figure descending Sinai, the judge enters. A marshal rattles through an admonition to heed the proceedings, and off we go. I suppose it is more decorous than "play ball!"
In truth, however, even baseball games open with more than is really necessary. Why the national anthem? Why do we all stand, hands placed over our hearts and mouth just enough of the words of the anthem to assure our neighbors we’re not al Qaeda? Ceremony, it seems, is good. We need ceremony.
So if Lancaster chooses to open its town meetings by permitting folks to invoke the deity of their choice, what’s the harm? Sure, it has a sad, sort of twelve-step feel to it, but we all struggle against the darkness the best we can. Go ahead and ask for light. We are seekers all, whether we care to admit it or not.
I was stung recently by the loss of a criminal trial. So stunned, in fact, that I re-read Martin Buber’s I and Thou. Buber was a Jewish theologian. He felt much sacrilege was done in the name of God. In I and Thou he set about making the world safe for reverence. His point, simply put, is this: Wonder defines us. We confront the world, each of us, with meager resources. Remaining open to the presence in the world of an unknowable other, whether that other be in the form of the person sitting across the room, or the forces that brought the world into being, is a source of spiritual vitality. We need, Buber reminds, to make room for the possibility of awe. There is no shame in marveling over the mystery of simply being alive.
And so the good folks of Lancaster will set about doing so at their town meanings. Some of them will offer prayers to folks and deities that defy rational comprehension. Some may offer silence, my preference, in the face of what can only be accepted, and never really known. This strikes me as a long, long way from spiritual totalitarianism. It looks a little like health. The battle in Lancaster is well worth watching.
Good luck, Rex.
Reprinted courtesy of the Connecticut Law Tribune.
Tuesday, April 20, 2010
Obama Announces Supreme Court Pick ...
Butner, North Carolina -- President Barack Obama stood before a federal prison today and announced that he was nominating an unknown 42-year-old lawyer as the next justice of the Supreme Court, replacing retiring Justice John Paul Stevens.
"I promised hope when I asked for your trust during the last election. And you heard me. Together we transformed hope into a new and audacious reality. Today I redeem a part of my promise by naming a man who is no stranger to the suffering of ordinary Americans as the next Justice of the United States Supreme Court," the president said.
When the nominee stood to address the assembled press corps, there was an eerie silence. The man was on no short list of candidates. Indeed, he was a man few present had ever considered.
"I am flattered and humbled by this honor, Mr. President," Gerry Darrow said. "In all my years at the bar, I never dreamed that I would be considered for such a post. I've represented folks at the margins of society for so long, I had begun to think of myself as an outcast."
Thus began the improbable confirmation battle of a former plaintiffs' lawyer turned mid-life public defender.
Court watchers and legal academics were stunned by the nomination.
Darrow graduated in the middle of his law school class at the Thomas Cooley Law School in Lansing, Michigan, and went on to become a personal injury lawyer in the Detroit firm of Michigan legend Geoffrey Feiger. His father worked on the assmblyline at Chrysler before succumbing to a heart attack two years before Darrow was graduated from college. His mother worked as a clerk at Blue Cross and Blue Shield. He enjoyed early and spectacular success as a trial lawyer, winning multi-million dollars against the auto industry and insurance companies. But after ten years of civil work, he had an epiphany.
"There's only so much money necessary to keep a roof over your head. I woke up one morning and didn't like the man looking back at me in the mirror. So I sold the Audi and applied for a job as a public defender," he said. "I was also divorced from my wife. It still hurts to think about that and the pain I caused my kids." He eventually landed in New Britain, Connecticut, in a community court serving an economically distressed community. "My bankruptcy helped knock the false pride out of me. I know human need and fear," he said.
Darrow remarried six years ago. His wife is a state police officer. "Passion makes strange bedfellows," he chuckled.
For the past seven years, Darrow has defended "more people than I can recall" in cases ranging from murder, child sexual abuse, drug sales and bank robbery to minor offenses such as promoting prostitution. "I'm more comfortable with folks like the ones I grew up with," he said. "I'd like to try my hand at white collar defense, but that work doesn't come to a public defender."
Darrow is an only child who graduated Detroit's Edwin Denby High School in 1986. He played football and worked part-time sweeping factory floors in high school before attending Eastern Michigan University in Ypsilanti, Michigan. "I really wanted to go to University of Michigan, but I didn't have the grades," he said. "I did pretty good in law school, though. And I love the courtroom."
An administration spokesman acknowledged that Darrow was an unconventional choice for the high court.
"The president had his pick from an extremely talented group of academics and appellate court judges," one source said on condition of anonymity. "But he promised change. He wanted a nominee who shared the same rough edges most Americans live with each and every day. As we were vetting candidates we came to the depressing realization that all these folks looked the same. The president wanted to leaven the Court with a person ordinary Americans would appreciate."
The Detroit Free Press once referred to Darrow as "brilliant and audacious" for his trial work on behalf of prisoners in the Wayne County jail. He is reported to have tried in excess of 150 cases to a verdict. He has argued scores of appeals in state and federal courts.
"The man knows his way around a courtroom," said Salmon Penderton, of the Connecticut Bar Association. "He is respected and admired by almost everyone in the criminal justice system. Sure, he's rubbed some folks the wrong way. But he's the guy they call when trouble comes."
Vermont Senator Patrick Leahy, co-chair of the Judiciary Committee, promised to give Darrow a fair hearing.
"We know nothing about the man, but I hear he is a capable lawyer. Perhaps that's all that is required. It could be refreshing to have a nominee unencumbered by commitments to legal interest groups." Leahy promised a prompt confirmation hearing.
Darrow seemed nonplussed by the furor with which his nomination was met.
"Sure, I want the job," he said. "But if it's not mean to be, it's not meant to be." He then removed his sports coat and entered the Butner Federal Medical Center, a federal prison, to visit a client committed there for the purposes of being restored to competency. "This is where the law lives," he said, as he entered the prison door. "I wonder if I can make what I see here a reality for the other justices."
"I promised hope when I asked for your trust during the last election. And you heard me. Together we transformed hope into a new and audacious reality. Today I redeem a part of my promise by naming a man who is no stranger to the suffering of ordinary Americans as the next Justice of the United States Supreme Court," the president said.
When the nominee stood to address the assembled press corps, there was an eerie silence. The man was on no short list of candidates. Indeed, he was a man few present had ever considered.
"I am flattered and humbled by this honor, Mr. President," Gerry Darrow said. "In all my years at the bar, I never dreamed that I would be considered for such a post. I've represented folks at the margins of society for so long, I had begun to think of myself as an outcast."
Thus began the improbable confirmation battle of a former plaintiffs' lawyer turned mid-life public defender.
Court watchers and legal academics were stunned by the nomination.
"Who?," said Laurence Tribe of the Harvard Law School. Even the Republican Party was stunned into momentary silence. "The man's an unknown, a cipher," said Senate Majority Leader Harry Reid. "We will, of course, have questions for him. Many questions." A spokesman for the Federalist Society questioned Darrow's credentials: "He didn't even graduate from a top-tier law school? Has he ever clerked for a federal judge?"
Darrow spoke with reporters after the press conference. Like his namesake Clarence Darrow, he is plainspoken, even blunt.
"My parents wanted me to be a lawyer," he said. "They figured with the last name Darrow, I'd have a pretty good start." He chuckled with the warmth of a man accustomed to mirth. "Of course, we're no relation. It was just dumb luck they named me Gerald," he said. "But once Gerry Spence's name went up in light, well, I knew the law was for me."Darrow graduated in the middle of his law school class at the Thomas Cooley Law School in Lansing, Michigan, and went on to become a personal injury lawyer in the Detroit firm of Michigan legend Geoffrey Feiger. His father worked on the assmblyline at Chrysler before succumbing to a heart attack two years before Darrow was graduated from college. His mother worked as a clerk at Blue Cross and Blue Shield. He enjoyed early and spectacular success as a trial lawyer, winning multi-million dollars against the auto industry and insurance companies. But after ten years of civil work, he had an epiphany.
"There's only so much money necessary to keep a roof over your head. I woke up one morning and didn't like the man looking back at me in the mirror. So I sold the Audi and applied for a job as a public defender," he said. "I was also divorced from my wife. It still hurts to think about that and the pain I caused my kids." He eventually landed in New Britain, Connecticut, in a community court serving an economically distressed community. "My bankruptcy helped knock the false pride out of me. I know human need and fear," he said.
Darrow remarried six years ago. His wife is a state police officer. "Passion makes strange bedfellows," he chuckled.
For the past seven years, Darrow has defended "more people than I can recall" in cases ranging from murder, child sexual abuse, drug sales and bank robbery to minor offenses such as promoting prostitution. "I'm more comfortable with folks like the ones I grew up with," he said. "I'd like to try my hand at white collar defense, but that work doesn't come to a public defender."
Darrow is an only child who graduated Detroit's Edwin Denby High School in 1986. He played football and worked part-time sweeping factory floors in high school before attending Eastern Michigan University in Ypsilanti, Michigan. "I really wanted to go to University of Michigan, but I didn't have the grades," he said. "I did pretty good in law school, though. And I love the courtroom."
An administration spokesman acknowledged that Darrow was an unconventional choice for the high court.
"The president had his pick from an extremely talented group of academics and appellate court judges," one source said on condition of anonymity. "But he promised change. He wanted a nominee who shared the same rough edges most Americans live with each and every day. As we were vetting candidates we came to the depressing realization that all these folks looked the same. The president wanted to leaven the Court with a person ordinary Americans would appreciate."
The Detroit Free Press once referred to Darrow as "brilliant and audacious" for his trial work on behalf of prisoners in the Wayne County jail. He is reported to have tried in excess of 150 cases to a verdict. He has argued scores of appeals in state and federal courts.
"The man knows his way around a courtroom," said Salmon Penderton, of the Connecticut Bar Association. "He is respected and admired by almost everyone in the criminal justice system. Sure, he's rubbed some folks the wrong way. But he's the guy they call when trouble comes."
Vermont Senator Patrick Leahy, co-chair of the Judiciary Committee, promised to give Darrow a fair hearing.
"We know nothing about the man, but I hear he is a capable lawyer. Perhaps that's all that is required. It could be refreshing to have a nominee unencumbered by commitments to legal interest groups." Leahy promised a prompt confirmation hearing.
Darrow seemed nonplussed by the furor with which his nomination was met.
"Sure, I want the job," he said. "But if it's not mean to be, it's not meant to be." He then removed his sports coat and entered the Butner Federal Medical Center, a federal prison, to visit a client committed there for the purposes of being restored to competency. "This is where the law lives," he said, as he entered the prison door. "I wonder if I can make what I see here a reality for the other justices."
A Rare Victory Against Overcriminalization
Animal lovers throughout the United States may be distressed by today's ruling in United States v. Stevens. But they should not be. The laws against animal cruelty pending in every state remain intact. All that changed today is the Government's freedom to apply vague laws in whatsoever manner a prosecutor with a wild hair chose. Oh, that the language in this decision would be applied broadly, and serve as a potent tool in the battle against overcriminalization.
The 8-1 decision by the United States Supreme Court struck down the federal law criminalizing the commercial sale, creation or depiction of animal cruelty. The statute was a criminal offense carrying a penalty of up to five years in prison. To be guilty of such an offense, a defendant had to violate a state or federal law regarding illegal treatment of animals and then take the additional step of trying to profit from depictions of cruelty in foreign or interstate commerce. Material of scientific, education or artistic value was excluded.
The law was intended to outlaw sexual fetish films involving the crushing of small animals. Apparently, libidinal sparks can burst into flames at the mere sight of a woman in high heels killing cats, dogs, monkeys, mice and even hamsters while berating them in the style of a dominatrix. Kibbles and Bits is apparently an aphrodisiac in some households.
Robert Stevens, the winner in today's case, sold dogfighting videos. For this, he was prosecuted, convicted, and sentenced to a total effective sentence of 37 months in prison. No dominatrix he.
The Supreme Court decision does not overturn state laws barring animal cruelty. Those laws remain in effect. Frankly, I am glad those laws exist. I am a dog lover. My two border collies, Odysseus and Penelope, require me to support such laws. (The dogs insisted their picture be published with this piece; they will not tell me why. Penny is on the right.)
Stevens' lawyers attacked this law as overbroad within the meaning of the First Amendment. In other words, the statute is written in such terms that it covers both potentially prohibited conduct, and conduct that is plainly permissible. In this case, the court noted, the law could be read to prosecute the killing of a stolen cow, a result far at variance from the statute's purpose.
The Government tried to argue that these issues would never arise because speech depicting cruelty to animals is not protected by the First Amendment at all. Not so fast, the court said. While obscenity, defamation, fraud, criminal incitement, criminal conspiracy and child pornography lack First Amendment protection, speech about animal cruelty has never been held to be beyond the scope of First Amendment protection. The act is foul, but we are still free to speak of foul things.
Next, the Government tried to claim that it would be reasonable, and would not turn a law intended to clip the heels of high strung dominatrices. Justice Roberts was at his best in rejecting this claim: "[T]he First Amendment protects against the Government: it does not leave us at the mercy of noblesse oblige. We would not uphold an unconstitutional statute merely because the Government promised to use it responsibly."
I like that language. It is far too rare a day when the Supreme Court turns it back on the new national anthem, "Trust and Obey," and trims the sails of the Government. Was the judicial scalpel easy to apply here because the stakes seemed low?
"This prosecution is itself evidence of the danger in putting faith in government representations of prosecutorial restraint," Roberts wrote. Petitioners should make every effort to remind the chief and his colleagues of these words in a broader variety of claims that those involving the sale of films depicting animal cruelty. It needs repeating when the courts are poised to give the benefit of the doubt to police officers in conducting searches or making arrests.
There are now so many crimes on the books that prosecutors have the ability to pick and choose when to charge almost anyone of us.
But I digress. This is a First Amendment case, not a claim involving a denial or equal protection or due process arising from an abuse of prosecutorial discretion. One hopes the sentiment of mistrust remains, however. We could use a dose of healthy skepticism when evaluating the perpetual reach of Uncle Sam's legions.
I suspect that today's decision will not end the press for legislation intended to outlaw the sale of material depicting animal cruelly. The Court suggested that tighter, more cleanly drafted language might pass muster. The statutory language, for example, did not really require that the prohibited images depict cruelty. Hence, the crime of killing a stolen cow.
But a new law is not needed. Every state outlaws animal cruelty. We do not really need another federal offense. Why Congress acted in this area at all is mystery. You can love animals and still hold your nose when the Government goes on a toot and asserts itself once more.
Why Talking To The Police Is Never A Good Idea
I'm a battle-hardened criminal defense lawyer, so it always surprises me how weak in the knees I get when a policeman pulls me over. The urge to confess runs rampant, even if I haven't done anything. I assume the authorities must have a reason for wanting to talk to me. What have I done?
Police prey upon our tendency to trust them. Yet confusing the sort of soul-cleansing confession one might give to a priest with the Earth-bound variety police officers ask for is playing with Hell fire. Many a man and woman sits now in a prison cell, convicted by their own words.
I pass along some general observations about cooperating with the police in the hope that it may spare you the sorrow that comes of an improvident confession to a lawman. Mind you, nothing I am writing here is meant to encourage folks to commit a crime. I am simply reminding you that however much confession may benefit the soul in some spiritual sense, the corporeal consequences of a confession could well land you in prison. And prison is not good for the soul.
So here are some common myths and misconceptions about what you must do when the police come calling.
1. The police can order me down to the station to give a statement, correct?
Wrong. The police cannot order you to come down and see them. The Fourth Amendment gives them the power to arrest if they develop probable cause to believe you have committed a crime, and they might have the authority to engage you in a brief investigatory detention. But no case stands for the proposition that you are required to come to the station for a chat. Period.
But fear undermines many folk's sense of self-interest. So does a misplaced sense of hope.
An officer may call and say he needs you to come to the station to tell your side of the story. (He may not tell you just what story that is. My favorite investigative technique? Officers show up at your door and ask: "Why do you think we want to talk to you?") The officer may say that if you don't come to the station he will seek an arrest warrant for you.
News flash: The officer is almost certainly going to seek the warrant anyhow once things have gotten to that point. What he is looking for here is a confession, to bolster the warrant and make a conviction all but a foregone conclusion.
The law does not require police officers to get your side of the story before arresting you. In rare cases only does discussing your case with the police benefit you. The only way to make an intelligent assessment of whether you should cooperate is by consulting a lawyer before you talk to the police. There are no exceptions to this rule. Don't accept the invitation for coffee and donuts at the station.
2. When the police show up at my house, I have to talk to them right?
Wrong again. The normal conventions of polite society do not apply here. The police have not come to your home to trade notes on how your respective fantasy sports teams are doing. They are investigating a crime, and you may well be a suspect. It takes perishingly little to convict of certain crimes. Minor details you give them may be used as a means of corroborating a far-fetched story told about you by others.
This is common in child sex-abuse cases. Suppose your niece or nephew now claims you abused them a decade ago. You are rattled. Shocked. The police want to ask you about the relationship. Where you saw the child. What sorts of things you did together. Why you think the child is saying these things. All of these investigative leads can be turned against you to corroborate the fact that you did, indeed, have contact with the child at certain family events. Your assessment of the child's motives will be transformed into claims that you were deceptive.
Evidence that might truly assist you, e.g., the fact that the child has made similar false or exaggerated claims, background on family conflicts that provide the child with powerful motives to lie to assure that mommy and daddy remain together, united in crisis, and other such information can be provided to the police by your lawyer.
3. If the police don't read me my rights, they can't use anything I say, right?
Wrong, unless you are in custody. The so-called Miranda warnings have become part of American folklore. Unfortunately, many people get it wrong, thanks in no small measure to television. Police are only required to advise you of your right to remain silent if you are in custody. If you appear at the station voluntarily and they tell you that you are free to leave, you almost certainly are not in custody. In these cases, courts will regard your statement as voluntary, and, Mirandized or not, you will eat your own words at trial.
If you are unsure whether you are in custody or not, and believe me, figuring that out is no easy task, simply refuse to speak to the police. Once again, don't resort to normal, polite conversational gambits. "Maybe I should talk to a lawyer" is not clear enough to satisfy a court that you were serious about wanting a lawyer present. State the following: "I DO NOT WANT TO SPEAK TO YOU WITHOUT A LAWYER PRESENT." Print it out on a three-by-five card. If you really want to short the officer's circuits, ask him to sign the card, signifying that he gets it. (He won't sign.)
This may sound cynical, but it is a conclusion I've reached after many years of head-banging: the courts are increasingly reluctant to meaningfully enforce the rights of the accused. Ask any criminal lawyer about the serious crime exception to the Bill of Rights. Don't become a victim. Call a lawyer.
Police officers are trained in the art of deception. They know how to prey on fear and uncertainty. Whether you have committed a crime or not, odds are you will be putty in their hands. There are ways to get the information important to your defense into the hands of the police, but you are not equipped to do it without a lawyer.
I have said this to folks hundreds of times. Sadly, each week I get another call from someone who has given away some significant portion of their future by talking about things they would have been better served keeping to themselves.
Police prey upon our tendency to trust them. Yet confusing the sort of soul-cleansing confession one might give to a priest with the Earth-bound variety police officers ask for is playing with Hell fire. Many a man and woman sits now in a prison cell, convicted by their own words.
I pass along some general observations about cooperating with the police in the hope that it may spare you the sorrow that comes of an improvident confession to a lawman. Mind you, nothing I am writing here is meant to encourage folks to commit a crime. I am simply reminding you that however much confession may benefit the soul in some spiritual sense, the corporeal consequences of a confession could well land you in prison. And prison is not good for the soul.
So here are some common myths and misconceptions about what you must do when the police come calling.
1. The police can order me down to the station to give a statement, correct?
Wrong. The police cannot order you to come down and see them. The Fourth Amendment gives them the power to arrest if they develop probable cause to believe you have committed a crime, and they might have the authority to engage you in a brief investigatory detention. But no case stands for the proposition that you are required to come to the station for a chat. Period.
But fear undermines many folk's sense of self-interest. So does a misplaced sense of hope.
An officer may call and say he needs you to come to the station to tell your side of the story. (He may not tell you just what story that is. My favorite investigative technique? Officers show up at your door and ask: "Why do you think we want to talk to you?") The officer may say that if you don't come to the station he will seek an arrest warrant for you.
News flash: The officer is almost certainly going to seek the warrant anyhow once things have gotten to that point. What he is looking for here is a confession, to bolster the warrant and make a conviction all but a foregone conclusion.
The law does not require police officers to get your side of the story before arresting you. In rare cases only does discussing your case with the police benefit you. The only way to make an intelligent assessment of whether you should cooperate is by consulting a lawyer before you talk to the police. There are no exceptions to this rule. Don't accept the invitation for coffee and donuts at the station.
2. When the police show up at my house, I have to talk to them right?
Wrong again. The normal conventions of polite society do not apply here. The police have not come to your home to trade notes on how your respective fantasy sports teams are doing. They are investigating a crime, and you may well be a suspect. It takes perishingly little to convict of certain crimes. Minor details you give them may be used as a means of corroborating a far-fetched story told about you by others.
This is common in child sex-abuse cases. Suppose your niece or nephew now claims you abused them a decade ago. You are rattled. Shocked. The police want to ask you about the relationship. Where you saw the child. What sorts of things you did together. Why you think the child is saying these things. All of these investigative leads can be turned against you to corroborate the fact that you did, indeed, have contact with the child at certain family events. Your assessment of the child's motives will be transformed into claims that you were deceptive.
Evidence that might truly assist you, e.g., the fact that the child has made similar false or exaggerated claims, background on family conflicts that provide the child with powerful motives to lie to assure that mommy and daddy remain together, united in crisis, and other such information can be provided to the police by your lawyer.
3. If the police don't read me my rights, they can't use anything I say, right?
Wrong, unless you are in custody. The so-called Miranda warnings have become part of American folklore. Unfortunately, many people get it wrong, thanks in no small measure to television. Police are only required to advise you of your right to remain silent if you are in custody. If you appear at the station voluntarily and they tell you that you are free to leave, you almost certainly are not in custody. In these cases, courts will regard your statement as voluntary, and, Mirandized or not, you will eat your own words at trial.
If you are unsure whether you are in custody or not, and believe me, figuring that out is no easy task, simply refuse to speak to the police. Once again, don't resort to normal, polite conversational gambits. "Maybe I should talk to a lawyer" is not clear enough to satisfy a court that you were serious about wanting a lawyer present. State the following: "I DO NOT WANT TO SPEAK TO YOU WITHOUT A LAWYER PRESENT." Print it out on a three-by-five card. If you really want to short the officer's circuits, ask him to sign the card, signifying that he gets it. (He won't sign.)
This may sound cynical, but it is a conclusion I've reached after many years of head-banging: the courts are increasingly reluctant to meaningfully enforce the rights of the accused. Ask any criminal lawyer about the serious crime exception to the Bill of Rights. Don't become a victim. Call a lawyer.
Police officers are trained in the art of deception. They know how to prey on fear and uncertainty. Whether you have committed a crime or not, odds are you will be putty in their hands. There are ways to get the information important to your defense into the hands of the police, but you are not equipped to do it without a lawyer.
I have said this to folks hundreds of times. Sadly, each week I get another call from someone who has given away some significant portion of their future by talking about things they would have been better served keeping to themselves.
Monday, April 19, 2010
Mr. Hayes Is Winning Converts Daily
Steven Hayes is no Hannibal Lechter. There's no stirring of genius animating his brow. His eyes don't fire with secret commune with evil. Mr. Hayes' crimes shock and inspire terror. But for all that, he looks different in degree, not in kind, from many who have committed horrible crimes. He stands trial just now for his role in the kidnap, rape and murder of a mother and two daughters in Cheshire, Connecticut, in 2007. The state, of course, wants him dead.
There's little doubt of Mr. Hayes' guilt, although a jury has yet to consider the evidence and pronounce a verdict. He was caught fleeing the scene. There are grisly photographs of him participating in the carnage. He's even offered to plead guilty in this highly publicized affair, if only the state would forebear the deadly needle of revenge and spare his life.
But the trial plods on. After nineteen days of individual sequestered voir dire, 11 jurors have been selected. Eight more folks need to be picked to fill out the 12-person panel plus alternates. Evidence is set to begin in September.
The case raises a question few face directly. For whose benefit are we holding this trial?`
Mr. Hayes certainly seems less than interested in the proceedings.
Although jury selection began in January, the proceedings were interrupted when Mr. Hayes tried to kill himself by stockpiling psychotropics and then swallowing a one-way ticket to Hell. Of course, his custodians leaped in to save his life. He was comatose for a time. No expense was spared to bring him back from the edge of eternity. And why was that? So we could kill him.
He was lassoed to a bed and a vigil kept over him 'round the clock.
Psychiatrists announced he was competent to stand trial. Translated into lay terms, that means he understands the charges against him, and is capable of assisting in his own defense. Except he doesn't seem to want to assist. As the trial court questioned him to make sure he was all there, Mr. Hayes stunned the Court and his lawyers by announcing he wanted to plead guilty.
That set juridical heads spinning. The man was declared competent, yet he wanted to plead guilty. Perhaps he wants to die, too. What to do? His lawyers knew what they wanted to do. They threatened to seek permission to withdraw from his case. They oppose the death penalty, after all. Crusaders don't let details like a client get in the way.
In a capital case, trial proceeds in two phases: A jury must first find guilt. Only after this finding does the jury determine whether to kill. So why, really, did Mr. Hayes' lawyers threaten to withdraw? The client is always the master of the ship when it comes to a decision about whether to plea. And the law does not permit Mr. Hayes to waive the penalty phase. Yes, it is wrong for the state to kill. But let's not forget the man whose life the state wants to take. In the end, that life belongs to Steven Hayes, and not to his lawyers.
It seems like Mr. Hayes is a prop in everyone else's psychodrama. The state wants to kill him to satisfy the angry blood lust of a state stirred by a vicious murder in a white upper-middle-class enclave. The surviving victim of the deadly rampage wants death for the sake of vengeance and the false sense of closure that will yield. His lawyers have vowed holy war on the death penalty and have vowed to fight it to the death regardless of their client's wishes.
Is it any wonder Mr. Hayes has grown weary of the melodrama? He just wants to be let alone. So he asked the judge for permission not to attend jury selection in his own trial.
Permission denied, we learned today, in a ruling the reeks of passive-aggressive self-righteousness. "You can't kill yourself, Mr. Hayes. We get to do that. And you mustn't kid yourself into thinking you can avoid watching the months-long orgy of revenge. Sit there like a good little killer and suck it up." The ruling is repulsive sadism.
Mr. Hayes is competent. He has a right to decide whether to plead guilty or not. He faces a state bent on nothing more than vengeance. Is it any wonder that he chooses not to sit day-by-day light some freak-show spectacle to be drooled over by those who want to see him dead?
The judge in this case has wooden ears when he tries to hear a soul cry out in agony. Despite Mr. Hayes' "obvious general detachment, Hayes does show flashes of alertness from time to time and has, when addressed, intelligently, answered questions put to him by the court. He is no automaton," the court ruled. Connect the dots judge. This man who is no automaton ought to have the right to decide whether he wants to sit and watch this bloodsport.
I suspect Mr. Hayes is simply sick and tired of being a pawn in other people's games. Requiring him to sit through endless day after day of jury selection in his case serves no purpose. If he is competent enough to assist in his own defense, he is competent enough to make a decision about whether to attend jury selection. Why not give the man the dignity that comes of his moral autonomy?
The answer, sadly, is that so long as he breathes, we can torture him, endlessly, and thus derive some sick sense of self-righteousness.
I have edited this piece to reflect the concerns of a very thoughful commenter named "Bryce." (See below.) My purpose is not to lionize Mr. Hayes, but to call into question the necessity of this very sad spectacle. This trial needn't be a farce. And for all the evil that Mr. Hayes undoubtedly has done, he is still entitled to elementary dignity in the proceedings. Treating him as a pawn is inconsistent with that.
Mr. Hayes may not be any Hannibal Lechter, but, somehow, the drama being played out in a New Haven courtroom shows how firmly in control of our emotions the man remains. He is the very image of evil we so love to hate. We won't let him fade away into quiet oblivion. No, we must kill him, publicly, and put him on display day-by-day. Little by little, we become smaller versions of the great evil that possesses a killer like Steven Hayes.
There's little doubt of Mr. Hayes' guilt, although a jury has yet to consider the evidence and pronounce a verdict. He was caught fleeing the scene. There are grisly photographs of him participating in the carnage. He's even offered to plead guilty in this highly publicized affair, if only the state would forebear the deadly needle of revenge and spare his life.
But the trial plods on. After nineteen days of individual sequestered voir dire, 11 jurors have been selected. Eight more folks need to be picked to fill out the 12-person panel plus alternates. Evidence is set to begin in September.
The case raises a question few face directly. For whose benefit are we holding this trial?`
Mr. Hayes certainly seems less than interested in the proceedings.
Although jury selection began in January, the proceedings were interrupted when Mr. Hayes tried to kill himself by stockpiling psychotropics and then swallowing a one-way ticket to Hell. Of course, his custodians leaped in to save his life. He was comatose for a time. No expense was spared to bring him back from the edge of eternity. And why was that? So we could kill him.
He was lassoed to a bed and a vigil kept over him 'round the clock.
Psychiatrists announced he was competent to stand trial. Translated into lay terms, that means he understands the charges against him, and is capable of assisting in his own defense. Except he doesn't seem to want to assist. As the trial court questioned him to make sure he was all there, Mr. Hayes stunned the Court and his lawyers by announcing he wanted to plead guilty.
That set juridical heads spinning. The man was declared competent, yet he wanted to plead guilty. Perhaps he wants to die, too. What to do? His lawyers knew what they wanted to do. They threatened to seek permission to withdraw from his case. They oppose the death penalty, after all. Crusaders don't let details like a client get in the way.
In a capital case, trial proceeds in two phases: A jury must first find guilt. Only after this finding does the jury determine whether to kill. So why, really, did Mr. Hayes' lawyers threaten to withdraw? The client is always the master of the ship when it comes to a decision about whether to plea. And the law does not permit Mr. Hayes to waive the penalty phase. Yes, it is wrong for the state to kill. But let's not forget the man whose life the state wants to take. In the end, that life belongs to Steven Hayes, and not to his lawyers.
It seems like Mr. Hayes is a prop in everyone else's psychodrama. The state wants to kill him to satisfy the angry blood lust of a state stirred by a vicious murder in a white upper-middle-class enclave. The surviving victim of the deadly rampage wants death for the sake of vengeance and the false sense of closure that will yield. His lawyers have vowed holy war on the death penalty and have vowed to fight it to the death regardless of their client's wishes.
Is it any wonder Mr. Hayes has grown weary of the melodrama? He just wants to be let alone. So he asked the judge for permission not to attend jury selection in his own trial.
Permission denied, we learned today, in a ruling the reeks of passive-aggressive self-righteousness. "You can't kill yourself, Mr. Hayes. We get to do that. And you mustn't kid yourself into thinking you can avoid watching the months-long orgy of revenge. Sit there like a good little killer and suck it up." The ruling is repulsive sadism.
Mr. Hayes is competent. He has a right to decide whether to plead guilty or not. He faces a state bent on nothing more than vengeance. Is it any wonder that he chooses not to sit day-by-day light some freak-show spectacle to be drooled over by those who want to see him dead?
The judge in this case has wooden ears when he tries to hear a soul cry out in agony. Despite Mr. Hayes' "obvious general detachment, Hayes does show flashes of alertness from time to time and has, when addressed, intelligently, answered questions put to him by the court. He is no automaton," the court ruled. Connect the dots judge. This man who is no automaton ought to have the right to decide whether he wants to sit and watch this bloodsport.
I suspect Mr. Hayes is simply sick and tired of being a pawn in other people's games. Requiring him to sit through endless day after day of jury selection in his case serves no purpose. If he is competent enough to assist in his own defense, he is competent enough to make a decision about whether to attend jury selection. Why not give the man the dignity that comes of his moral autonomy?
The answer, sadly, is that so long as he breathes, we can torture him, endlessly, and thus derive some sick sense of self-righteousness.
I have edited this piece to reflect the concerns of a very thoughful commenter named "Bryce." (See below.) My purpose is not to lionize Mr. Hayes, but to call into question the necessity of this very sad spectacle. This trial needn't be a farce. And for all the evil that Mr. Hayes undoubtedly has done, he is still entitled to elementary dignity in the proceedings. Treating him as a pawn is inconsistent with that.
Mr. Hayes may not be any Hannibal Lechter, but, somehow, the drama being played out in a New Haven courtroom shows how firmly in control of our emotions the man remains. He is the very image of evil we so love to hate. We won't let him fade away into quiet oblivion. No, we must kill him, publicly, and put him on display day-by-day. Little by little, we become smaller versions of the great evil that possesses a killer like Steven Hayes.
A Kinder, Gentler Apocalypse: On The Beach
My midnight readings have taken a dark turn for the past few weeks. Books about the apocalypse and social upheaval intrigue me. This past weekend, I finished another, Nevil Shute's On The Beach, written in 1957. Call this a kinder and gentler version of the end.
Nuclear war incinerates the combatants, and most of the world. North America is decimated. Europe is a memory. Asia is no more. A few outposts of civilization remain, in South America and in Australia. Yet no one is immune from radiation sickness. It will be a long, long time before the Earth recovers from war. Australia monitors the advance of radiation on the air currents, counting down to an estimated date of arrival, and certain death.
An American submariner surfaces and submits to the command of the Australian government. He is stationed at Melbourne, where he makes the acquaintance of a British Naval Officer, the officer's wife, and a woman who struggles against despair.
Although the end draws ever closer, Shute's characters never lose hope. The submariner remains faithful to his family killed in Connecticut, shopping for presents for them and planning a reunion in September, when he heads home. (That is when radiation poisoning expects to make Australia uninhabitable.) His decency redeems the despondent woman, and the two form a liaison that exists in uneasy equipoise with his commitment to the memory of his wife and children. Another couple in the book gives birth to an infant, and plans endlessly for a garden that will never grow. A farmer worries what will become of his cattle.
This book celebrates ordinary decency. The end draws neigh, and yet shopkeepers continue to charge reasonable prices for their wares. Order is kept not so much through the dead weight of force, but through an internal sense of decency. This is not Thomas Hobbes state of nature.
Shute writes of a different world. It is hard to imagine a peace of contemporary fiction envisioning the end of the world as we know it without graphic violence and the thrill of immanent destruction.
This book may not resonate with those who did not spend time on their hands and knees crawling beneath their desks in air raid drills in the era of the Cuban missile crisis. I recall the drills well. We were told to turn away from the windows as we hovered beneath our desks. Just why always amazed me. Did they really expect to survive the blast and fireball we expected to come?
Visions of the apocalypse are different now. We worry less about nuclear war, although last week's summit suggests we might be fooling ourselves by dismissing the possibility. Today we worry more about ecological disaster. It is almost as though we cannot help but conceive an end to history. Trapped, as we are, in a world bounded by space and time, I suspect there is something about the simple narrative rhythm of beginning, middle and end that compels a consideration of the last act. Shute's characters face their end with a dignity and grace that reveals civilization is really not about the bricks and mortar that provide the physical metes and bounds of our lives. Civilization springs from within, and it is within us to cherish the graceful deed even when all else fails.
The end does come in On the Beach. There is no escaping it. Yet each character lingers on in the hope that the future beckons. And when the night falls, it is greeted with honor and a sense that duty extends beyond the reach of an individual's life: duty transcends. Perhaps Nevil Shute is an apocalyptic Kantian. I recommend the work as a classic in the genre, and as a book filled with characters worth loving.
Nuclear war incinerates the combatants, and most of the world. North America is decimated. Europe is a memory. Asia is no more. A few outposts of civilization remain, in South America and in Australia. Yet no one is immune from radiation sickness. It will be a long, long time before the Earth recovers from war. Australia monitors the advance of radiation on the air currents, counting down to an estimated date of arrival, and certain death.
An American submariner surfaces and submits to the command of the Australian government. He is stationed at Melbourne, where he makes the acquaintance of a British Naval Officer, the officer's wife, and a woman who struggles against despair.
Although the end draws ever closer, Shute's characters never lose hope. The submariner remains faithful to his family killed in Connecticut, shopping for presents for them and planning a reunion in September, when he heads home. (That is when radiation poisoning expects to make Australia uninhabitable.) His decency redeems the despondent woman, and the two form a liaison that exists in uneasy equipoise with his commitment to the memory of his wife and children. Another couple in the book gives birth to an infant, and plans endlessly for a garden that will never grow. A farmer worries what will become of his cattle.
This book celebrates ordinary decency. The end draws neigh, and yet shopkeepers continue to charge reasonable prices for their wares. Order is kept not so much through the dead weight of force, but through an internal sense of decency. This is not Thomas Hobbes state of nature.
Shute writes of a different world. It is hard to imagine a peace of contemporary fiction envisioning the end of the world as we know it without graphic violence and the thrill of immanent destruction.
This book may not resonate with those who did not spend time on their hands and knees crawling beneath their desks in air raid drills in the era of the Cuban missile crisis. I recall the drills well. We were told to turn away from the windows as we hovered beneath our desks. Just why always amazed me. Did they really expect to survive the blast and fireball we expected to come?
Visions of the apocalypse are different now. We worry less about nuclear war, although last week's summit suggests we might be fooling ourselves by dismissing the possibility. Today we worry more about ecological disaster. It is almost as though we cannot help but conceive an end to history. Trapped, as we are, in a world bounded by space and time, I suspect there is something about the simple narrative rhythm of beginning, middle and end that compels a consideration of the last act. Shute's characters face their end with a dignity and grace that reveals civilization is really not about the bricks and mortar that provide the physical metes and bounds of our lives. Civilization springs from within, and it is within us to cherish the graceful deed even when all else fails.
The end does come in On the Beach. There is no escaping it. Yet each character lingers on in the hope that the future beckons. And when the night falls, it is greeted with honor and a sense that duty extends beyond the reach of an individual's life: duty transcends. Perhaps Nevil Shute is an apocalyptic Kantian. I recommend the work as a classic in the genre, and as a book filled with characters worth loving.
Four Things You Should Know About Sex Offenses
If you or a loved one are charged with a sex offense you are undoubtedly concerned about the prospect of imprisonment. But that is only one of the four discrete harms faced by any accused sex offender. There are three other harms that are as significant, and each should be discussed with your lawyer.
Sex offenses come in many forms, ranging from urinating in public, in some jurisdictions, to forcible rape. Unfortunately, all these various offenses are frequently lumped together. Programs designed for violent offenders are often indiscriminately required for anyone convicted of a sex offense.
Here are the four harms: imprisonment, a felony record, registration as a sex offender, and being required to undergo sex offender treatment as a condition of probation. Often, defendants are so terrified of imprisonment, they do not spend enough time focusing on the other harms that will befall them if they enter a plea or are convicted a trial.
Imprisonment. Nothing prevents a prosecutor from overcharging a case. We call this colloquially "throwing the book" at someone. Thus, for one event, a defendant can be charged with a series of crimes. Often the more serious charges carry mandatory minimum prison sentences. A person facing five years mandatory jail time might willingly, and gratefully, plead guilty to charges not including the mandatory minimum. Many a defendant has walked out of court with a suspended sentence when the state dropped a charge carrying a mandatory minimum only to face nightmarish terms and conditions of probation. Be sure you understand the factual basis supporting each charge. Ask your lawyer whether the state has overcharged in a way that violates your right to be free from double jeopardy. (The answer is almost always no, but you still need to check.)
Felony. A felony conviction is a potent bar to participation in many professions. It will also keep you from voting and from enjoying certain federal and state benefits. Most state penal codes are drafted in such a way that related offenses are graded on a scale of culpability, with first degree offenses being considered more serious than offenses in the second, third or fourth degree. There are sometimes misdemeanor offenses lurking at the low end of the culpability scale. Always press in pre-trial negotiations for the state to consider a plea to a misdemeanor in those cases in which you are willing to consider a plea. At trial, be sure to ask your lawyer to review with you any lesser included offenses that you might ask the judge to submit to a jury. Remember: the state almost always overcharges a case. Putting a lesser charge before the jury might well spare you a felony if you are convicted.
Sex Offender Registration. The law is particularly savage. Lawmakers are forever pressed into hysteria when a new sensational sex abuse case hits the newspaper. They adopt a one-size-fits-all strategy for classifying those convicted of an ever-widening array of crimes. A serial rapist is the same as a 17 year-old boy who made love to his minor girlfriend. Judges acknowledge the cruelty of these laws in private conversations, but few will do anything about it when it counts. Everyone is afraid of retribution at the polls or at their next retention hearing. Laws differ in both the state and federal courts about what offenses require registration and for how long. Many states also have law-enforcement only sites that are not disclosed to the public via the Internet. If you need to register, press your lawyer to get you on a non-public list for a limited period.
Sex Offender Treatment. This condition of probation catches many defendants by surprise. It is sometimes slipped in at the very last minute after a plea bargain when a judge requires compliance with "such conditions as probation deems necessary." A person facing such treatment can expect demeaning treatment by scarcely trained and often poorly education folks with the equivalent of undergraduate degrees. A probationer might be required to fill out a detailed questionnaire about their sexual history and fantasies. You might be required to admit things you never did or face prison. And then there are group treatment sessions in which Romeo sits cheek by jowl with Jack the Ripper. And don't try complaining to the court that all these conditions are unfair or are not what you bargained for. The courts are rarely receptive to such claims.
Sex offender cases are terrifying. Clients face enormous prison terms. The rules of evidence are stacked in favor of the complaining witnesses, with special rules of young alleged victims and limits on what can and cannot be said about the past of the person accusing you of a crime. And lawmakers show increasing willingness to extend statutes of limitations to the breaking point. Don't recall where you were 30 years ago? Who can? But an alleged victim can claim you touched her or him in ways the law prohibits.
The four harms facing all sex offenders need to be addressed promptly in any defense strategy. It may be that intelligent negotiations with the state can minimize these harms if you are willing to consider a plea to some offense. Of course, in cases in which a plea is out of the question, it still pays to keep your eye on these four harms. If you are unfortunate enough to be convicted, you'll want to avoid as many of them as possible.
Sex offenses come in many forms, ranging from urinating in public, in some jurisdictions, to forcible rape. Unfortunately, all these various offenses are frequently lumped together. Programs designed for violent offenders are often indiscriminately required for anyone convicted of a sex offense.
Here are the four harms: imprisonment, a felony record, registration as a sex offender, and being required to undergo sex offender treatment as a condition of probation. Often, defendants are so terrified of imprisonment, they do not spend enough time focusing on the other harms that will befall them if they enter a plea or are convicted a trial.
Imprisonment. Nothing prevents a prosecutor from overcharging a case. We call this colloquially "throwing the book" at someone. Thus, for one event, a defendant can be charged with a series of crimes. Often the more serious charges carry mandatory minimum prison sentences. A person facing five years mandatory jail time might willingly, and gratefully, plead guilty to charges not including the mandatory minimum. Many a defendant has walked out of court with a suspended sentence when the state dropped a charge carrying a mandatory minimum only to face nightmarish terms and conditions of probation. Be sure you understand the factual basis supporting each charge. Ask your lawyer whether the state has overcharged in a way that violates your right to be free from double jeopardy. (The answer is almost always no, but you still need to check.)
Felony. A felony conviction is a potent bar to participation in many professions. It will also keep you from voting and from enjoying certain federal and state benefits. Most state penal codes are drafted in such a way that related offenses are graded on a scale of culpability, with first degree offenses being considered more serious than offenses in the second, third or fourth degree. There are sometimes misdemeanor offenses lurking at the low end of the culpability scale. Always press in pre-trial negotiations for the state to consider a plea to a misdemeanor in those cases in which you are willing to consider a plea. At trial, be sure to ask your lawyer to review with you any lesser included offenses that you might ask the judge to submit to a jury. Remember: the state almost always overcharges a case. Putting a lesser charge before the jury might well spare you a felony if you are convicted.
Sex Offender Registration. The law is particularly savage. Lawmakers are forever pressed into hysteria when a new sensational sex abuse case hits the newspaper. They adopt a one-size-fits-all strategy for classifying those convicted of an ever-widening array of crimes. A serial rapist is the same as a 17 year-old boy who made love to his minor girlfriend. Judges acknowledge the cruelty of these laws in private conversations, but few will do anything about it when it counts. Everyone is afraid of retribution at the polls or at their next retention hearing. Laws differ in both the state and federal courts about what offenses require registration and for how long. Many states also have law-enforcement only sites that are not disclosed to the public via the Internet. If you need to register, press your lawyer to get you on a non-public list for a limited period.
Sex Offender Treatment. This condition of probation catches many defendants by surprise. It is sometimes slipped in at the very last minute after a plea bargain when a judge requires compliance with "such conditions as probation deems necessary." A person facing such treatment can expect demeaning treatment by scarcely trained and often poorly education folks with the equivalent of undergraduate degrees. A probationer might be required to fill out a detailed questionnaire about their sexual history and fantasies. You might be required to admit things you never did or face prison. And then there are group treatment sessions in which Romeo sits cheek by jowl with Jack the Ripper. And don't try complaining to the court that all these conditions are unfair or are not what you bargained for. The courts are rarely receptive to such claims.
Sex offender cases are terrifying. Clients face enormous prison terms. The rules of evidence are stacked in favor of the complaining witnesses, with special rules of young alleged victims and limits on what can and cannot be said about the past of the person accusing you of a crime. And lawmakers show increasing willingness to extend statutes of limitations to the breaking point. Don't recall where you were 30 years ago? Who can? But an alleged victim can claim you touched her or him in ways the law prohibits.
The four harms facing all sex offenders need to be addressed promptly in any defense strategy. It may be that intelligent negotiations with the state can minimize these harms if you are willing to consider a plea to some offense. Of course, in cases in which a plea is out of the question, it still pays to keep your eye on these four harms. If you are unfortunate enough to be convicted, you'll want to avoid as many of them as possible.
Sunday, April 18, 2010
Just Call Me A Twit Wit
For better or worse, I signed up for Twitter today. Of course, now I have to figure out how to use it. Help!
As near as I can tell, my username is: Norm_Pattis.
As near as I can tell, my username is: Norm_Pattis.
Saturday, April 17, 2010
Why Kagan And Company Aren't Right For The Supreme Court
The same edition of the New York Times that carried an assessment of the top three contenders for the imminent vacancy on the United States Supreme Court also carried a story that one of three Americans failed to return Census Bureau forms. I wonder whether there's a deeper moral in this innocent juxtaposition: Is the Supreme Court increasingly irrelevant to the lives most Americans live? Or, perhaps more to the point, are most Americans detaching from anything like a mainstream of common norms?
Elena Kagan, Diane Wood and Merrick Garland are three of the top contenders for the seat being vacated by Justice John Paul Stevens. Kagan is former dean of the Harvard Law School, and serves now as Solicitor General of the United States. Diane Wood and Merrick Garland are federal appellate court judges. They are part of the other, and affluent America; they are the sort of people who most likely returned their Census forms because they feel it is their civic obligation to do so. They are also as mainstream as one can get.
Each of the three contenders served as federal appellate court clerk, and, then, clerk to a United States Supreme Court justice. Kagan and Garland were graduated from the Harvard Law Review; Wood's academic roots are more modest: she was graduated from the University of Texas law school. All have experience as lawyers in the federal government, and all are legal academics. It appears that only Kagan has any experience in the private sector, working briefly at a white shoe firm, Covington and Burlington.
The Times makes much of the differences between the three. Ms. Kagan is seen by some as more concerned with gay rights than national security. Ms. Wood is considered by others to be hostile to Christians and too inclined to support abortion rights. Mr. Garland just might like big government and lean in favor of assuring that those accused of terrorism enjoy basic constitutional rights. Put another way, all could easily share the same limousine en route to a Georgetown dinner party.
And that's the problem. Each of these candidates sits atop the pyramid of Maslow's hieracrchy of need. Each has it all: affluence, fame, power. They lead privileged lives, far from need, far from foreclosure, far from the madding crowd that darkens the doors of almost every trial court in the land. For folks like this, the law is all about theory and legal doctrine. I suspect each would wet themselves if left alone with an actual client facing prison time for a crime he may, or may not, have committed.
I cannot fathom why President Obama finds it necessary to dip into the same cesspool of privilege for Supreme Court justices that has served the country so indifferently during the past three decades or more. Is this change?
Watching the debate about the nomination reminds me of appearing before a federal judge some fifteen years ago for several trials. The man was a distinguished intellectual. But he had never tried a case to a verdict as a lawyer. Appearing before him hurt: he tried mightily to do the right thing, but one sensed his discomfort in the rough and tumble world of need. In his world, clients had all the money necessary to do everything the law permitted. Most Americans make cost-benefit decisions about what they can and should do. The privileged rarely do.
Kagan, Wood and Merrick are all qualified to be Supreme Court justices. There is no doubt about that. But they are all also distressingly cut from the same cloth as members of the current court. Hasn't the president noticed, however, that this cloth is fraying? The tapestry of American society is becoming undone? We need new wine skins for the court; the skins old are bursting with the pressure of a nation polarized into worlds as different as Georgetown and Main Street, USA.
Why isn't the president looking among the ranks of the nation's Public Defenders for a justice? Or perhaps someone who has sat in a Legal Aid office counseling folks on how to keep their home? Why not a lawyer who has spent a decade of so facing juries, or explaining to clients just how difficult it is to overturn a verdict on appeal? It's easy for judges to regard trial error as harmless when they never face those harmed.
Change, the president promised. It is a promise unredeemed thus far in so far as judicial appointments are concerned. When it comes to the Supreme Court, its the same old cream churned into premium vanilla.
Is it any wonder many Americans ignored the Census? For many folks, reporting the details of their domestic life to a distant government feels alot like reporting to a foreign power. Kagan, Wood and Garland are each distinguished jurists. But they are also so far out of the mainstream as to live in a world apart from ordinary Americans.
Elena Kagan, Diane Wood and Merrick Garland are three of the top contenders for the seat being vacated by Justice John Paul Stevens. Kagan is former dean of the Harvard Law School, and serves now as Solicitor General of the United States. Diane Wood and Merrick Garland are federal appellate court judges. They are part of the other, and affluent America; they are the sort of people who most likely returned their Census forms because they feel it is their civic obligation to do so. They are also as mainstream as one can get.
Each of the three contenders served as federal appellate court clerk, and, then, clerk to a United States Supreme Court justice. Kagan and Garland were graduated from the Harvard Law Review; Wood's academic roots are more modest: she was graduated from the University of Texas law school. All have experience as lawyers in the federal government, and all are legal academics. It appears that only Kagan has any experience in the private sector, working briefly at a white shoe firm, Covington and Burlington.
The Times makes much of the differences between the three. Ms. Kagan is seen by some as more concerned with gay rights than national security. Ms. Wood is considered by others to be hostile to Christians and too inclined to support abortion rights. Mr. Garland just might like big government and lean in favor of assuring that those accused of terrorism enjoy basic constitutional rights. Put another way, all could easily share the same limousine en route to a Georgetown dinner party.
And that's the problem. Each of these candidates sits atop the pyramid of Maslow's hieracrchy of need. Each has it all: affluence, fame, power. They lead privileged lives, far from need, far from foreclosure, far from the madding crowd that darkens the doors of almost every trial court in the land. For folks like this, the law is all about theory and legal doctrine. I suspect each would wet themselves if left alone with an actual client facing prison time for a crime he may, or may not, have committed.
I cannot fathom why President Obama finds it necessary to dip into the same cesspool of privilege for Supreme Court justices that has served the country so indifferently during the past three decades or more. Is this change?
Watching the debate about the nomination reminds me of appearing before a federal judge some fifteen years ago for several trials. The man was a distinguished intellectual. But he had never tried a case to a verdict as a lawyer. Appearing before him hurt: he tried mightily to do the right thing, but one sensed his discomfort in the rough and tumble world of need. In his world, clients had all the money necessary to do everything the law permitted. Most Americans make cost-benefit decisions about what they can and should do. The privileged rarely do.
Kagan, Wood and Merrick are all qualified to be Supreme Court justices. There is no doubt about that. But they are all also distressingly cut from the same cloth as members of the current court. Hasn't the president noticed, however, that this cloth is fraying? The tapestry of American society is becoming undone? We need new wine skins for the court; the skins old are bursting with the pressure of a nation polarized into worlds as different as Georgetown and Main Street, USA.
Why isn't the president looking among the ranks of the nation's Public Defenders for a justice? Or perhaps someone who has sat in a Legal Aid office counseling folks on how to keep their home? Why not a lawyer who has spent a decade of so facing juries, or explaining to clients just how difficult it is to overturn a verdict on appeal? It's easy for judges to regard trial error as harmless when they never face those harmed.
Change, the president promised. It is a promise unredeemed thus far in so far as judicial appointments are concerned. When it comes to the Supreme Court, its the same old cream churned into premium vanilla.
Is it any wonder many Americans ignored the Census? For many folks, reporting the details of their domestic life to a distant government feels alot like reporting to a foreign power. Kagan, Wood and Garland are each distinguished jurists. But they are also so far out of the mainstream as to live in a world apart from ordinary Americans.
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