Words to live by

I caught this on Moonshiners the other night. Jesse, the Virginia ABC agent was driving around talking about the moonshiner that got away...

"The bad guys gotta be lucky all the time. I only got to be lucky one time."

How true. How very true.

Fighting authority

'nuff said.

Just because you sit in a garage, it doesn't mean you're a car

Rigid adherence to protocol should never be mistaken for intellectual rigor.

Of course not only do we tend to equate the two, we actually hold it up as model behavior in our courts. We call it precedent. It's what allows appellate jurists to ignore the facts, and the constitution, when they don't want to make a difficult decision. Now the law should be predictable so that we don't find ourselves committing felonies  because one judge somewhere woke up on the wrong side of the bed or had a bad night.

But the law is also organic. It was written by man. Our laws were passed in response to things that were happening at a given point in time. The circumstances surrounding the birth of many of our laws have completely changed over the years. There are things we have now that could never have been contemplated by the Founding Fathers.

DNA, breath testing, drug-sniffing dogs, cell phones, the internet, cars...

None of that was around back in the late 18th century. Hell, none of that was around in the 19th century or most of the 20th century for that matter.

Sitting on the bench requires more than just the ability to look up the local rules or the rules of civil or criminal procedure. Sitting on the bench requires one to "rise above the fray" and engage one's mind in just what it means for a search to be "unreasonable." It requires one to contemplate just what it means to "invoke" one's right to remain silent.

It requires one to be able to take into account the "big picture." When a judge makes a ruling from the bench that judge needs to be aware of what the consequences of that decision are. Judges who dispense "one size fits all" remedies are doing a disservice not only to the legal system but to our communities as well.

Judges are not part of any "team" and should never allow themselves to act in such a manner nor allow others to perceive they are acting in such a manner. Candidates for criminal benches should never sound like candidates for sheriff.

The job of sitting on that bench and making rulings that will affect peoples' lives is an awesome responsibility and that fact should never be forgotten. And to make those decisions based upon a rigid adherence to protocol is a sign that the person sitting on the bench has no business sitting there.

Update: Dr. Big Brother?

As a follow up to a piece I wrote in May about a ballot initiative in San Francisco that would impose fines on doctors who performed circumcisions, a Superior Court judge in San Francisco has ordered the referendum be removed from the ballot.

Judge Loretta Giorgi found that circumcision is a medical procedure and, as with other medical procedures, should be regulated by the state and not by individual cities.

Of course Judge Giorgi's ruling did not please everyone in the City by the Bay.

"To remove an initiative before it comes on ballot is an extraordinarily irregular thing to do," said Lloyd Schofield, who is part of a Bay Area advocacy group that says the surgery violates human rights and likens it to "male genital mutilation."

I guess we all need a cause but, let's get real, to blame all of the problems one has faced in life on the fact that mom and dad decided Junior should be circumcised shortly after birth, is just a bit of a stretch. Making such a statement is taking victimology to new heights. If you don't want your son to be circumcised, Mr. Schofield, then don't have him circumcised.

You see, that was an easy enough problem to resolve now, wasn't it?

Why do I get the feeling that we haven't heard the last of this?

The nanny state and the goldfish

First they set their sights on Happy Meals. Next up was circumcision. Now the city of San Francisco has decided that goldfish are a blight upon humanity. The San Francisco Animal Control and Welfare Commission has proposed that city supervisors ban the sale of goldfish in the city because aquarium fish are "mass bred" under "inhumane" conditions.

WTF?

"Most fish in aquariums are either mass bred" under inhumane conditions "or taken from the wild," commission member Philip Gerrie said. That leads to "devastation of tropical fish from places like Southeast Asia," he said.

Millions of children learn to care for animals by raising goldfish. When I was a strapping young lad each of us in our family had a goldfish. We had to feed the fish and keep the water clean. Of course they all eventually died -- though none more spectacularly than my youngest brother's fish who got sick and was eaten by his bowl mate.

Fish are the ultimate urban pet. You don't have to walk them. You don't have to clean up after them. They don't soil the carpet. They don't get fur all over the furniture. They're pretty to look at - especially salt water fish - and you can customize your tank to your heart's content.

The fish don't have to search for food. They don't have to worry about predators. They just have to swim around all day and provide a pleasant backdrop for whatever else is going on inside the house.

The City by the Bay has rapidly become a symbol of the "nanny state" on steroids. People have to, at some level, be left to their own devices to function. The citizenry has a right to be left alone by the ever expanding reach of the state. Not every perceived wrong can be "fixed" by government fiat.

Like every other major city in the United States, San Francisco is confronted with unemployment, crime, pollution, traffic congestion, poverty, drug and alcohol addiction and a host of other problems. But instead of looking at ways to alleviate human suffering, the do-gooders in San Francisco are taking up the cause of goldfish.

I guess it's much easier to deal with pseudo-issues like rousting fish from the sea than it is with the very real problems that confront our society on a daily basis.

The slow drip of tyranny

I came across the following message on one of the listservs I frequent the other day:

When did we as a society decide it was ok for the government to put electronic policing devices in our private homes and cars and to make up pee in cups every time we turn around? who is to blame? 

If everyone simply refused to comply with those conditions, what would happen?

Freedom is what would happen.

But it won't. We live in a society of lemmings. Few people are willing to rock the boat and those that do are labeled "troublemaker" and "subversive."

We have meekly turned to the state and asked it to protect us. We have decided that we would rather be safe than free. That we would rather have order than liberty.

We have sat by and watched as the state has whittled down the protections of the Bill of Rights. We have stood by as the police and courts have sliced, diced and chopped the Fourth Amendment into a meaningless melange of words on a piece of paper. Words now devoid of meaning.

We did nothing as the state assaulted our right to remain silent and not incriminate ourselves. We stood in awe as the Supreme Court made a mockery of the Fifth Amendment. Instead of having the right to remain silent and speak with an attorney before answering questions, the state now has the right to question us without an attorney unless we say otherwise.

We sat there blissfully unaware as our right to counsel was cut out from underneath us. We've allowed the Supreme Court to decide just what constitutes a critical moment in the criminal (in)justice system. I'm sorry, but being accosted by the police is the critical moment. Did someone along the way forget that we have the right to be left alone?

We have gladly handed over our freedom to the tools of the police state at airports and at the entrances to courthouses across this land. We have allowed the state to molest our children and terrorize the old, the sick and the infirm in the name of "protecting" us from terrorism.

We have gone from a society in which men were not afraid to sign their own death warrant by signing the Declaration of Independence to a society in which we are scared shitless to do anything that might bring attention to ourselves. We have gone from a society that took up arms and fought for its independence to a society that willingly bends over and takes whatever the state sends our way.

Why are we were we are now? It's because no one drew a line in the dirt and dared the powers of the state to cross it. It's because no one was willing to stand up and challenge the authorities.

Thomas Jefferson once said that "every generation needs a revolution."

We had one in 1776. Another one in the 1860's. Maybe it's time. Again.

The politics of exclusion

"Lord, I know that I always said that I'd never involve you in a baseball game. It always seemed silly. I mean, You got enough to do." -- Billy Chapel, For Love of the Game

*     *     *     *     *

"And more importantly, we're going to have to pray. We're going to have to do this prayerfully so that it's not by might nor by strength but by His power that this country will be turned back to Him. That's what we're going to do."  -- Ralph Reed, founder of the Faith and Freedom Coalition

We all know that the wingnuts think God is a rock-ribbed, card-carrying conservative. I would think that, if such a being exists, that it has more important things to worry about than who wins a freaking election. I also find it quite arrogant (or maybe ignorant) for one group to proclaim that God is their God and no one else's.

Who's to say Ralph's crew of bible-thumping believers is right? Is Mr. Reed implying that anyone who doesn't support his agenda is not a true Christian? Is he implying that anyone who doesn't support his agenda doesn't believe in, or worship, God (in whatever name or form)?

What about Catholics and Jews and Muslims and Buddhists?

What about anyone who believes differently?

And what about Jesus's warning that it isn't our place to judge others?

And where does Mr. Reed place compassion, understanding and tolerance in the great pantheon of virtues?

Or does religion have nothing to do with this at all? Are Mr. Reed and his fellow travelers just using religion as a cover to organize a political movement? Karl Marx referred to religion as the opiate of the masses. Religion has long been used to quell the masses by promising them a brighter tomorrow once this miserable life is over.

This is a nation founded on religious freedom. The dour Pilgrims left England because they didn't want the King and Queen telling them how to worship. This nation was built on the backs of immigrants who brought their religions and their beliefs with them to America. The current nativist movement conveniently forgets that few of us were born here. We all came from somewhere else.

All the king's horses...

vic·tim   noun \ˈvik-təm\
1 : a living being sacrificed to a deity or in the performance of a religious rite2 : one that is acted on and usually adversely affected by a force or agent : asa (1) : one that is injured, destroyed, or sacrificed under any of various conditions    (2) : one that is subjected to oppression, hardship, or mistreatment b : one that is tricked or duped 

Both Scott Greenfield and Jeff Gamso have posted recently about bending the rules so that the "victim" of a crime gets a say-so in how a case is resolved. While politicians love to court votes by being "tough on crime," too often they are just butchering the Bill of Rights. They open their mouths without stopping to think that without a crime, there can be no victim.

Take a second to let that sink in. Until a person has been found guilty (by plea or by trial), there was no crime. It is only after the conviction that we can conclude that a criminal act took place. It is only then that there is a "victim."

It's not unusual where I practice for the police to be called out on a domestic disturbance call where there is an allegation of an assault. Upon arrival, the police will arrest the male and he will be charged with assault of a family member. Then, after she realizes that her husband or boyfriend is being charged with a crime, the woman will either contact the defense attorney or the prosecutor and try to get the charges dropped.

Then, when we appear at the courthouse, the prosecutor will tell me that, even though the complaining witness has signed an affidavit of non-prosecution and has told the prosecutor she will not cooperate in the case, he is powerless to dismiss the case because the man was accused of a crime.

But, try to work out a plea on a more serious felony matter and the prosecutor will tell you that he or she must consult with the complaining witness to see if they're okay with the proposed resolution of the matter.

You can't have it both ways. Either the complaining witness has a role in the prosecution or they don't.

Whenever one of our clients is charged with a criminal offense, the charge reads "The State of ___" or "The People of ___" or "The Commonwealth of ___" on the left side of the vs. It's not "Jane Doe" vs. "Joe Bob." And it shouldn't be.

If Jane Doe wants to exact her revenge on Joe Bob, she can hire an attorney and file suit at the civil courthouse alleging that Joe Bob committed any of a number of torts against her or her property. Now she might not be happy that the only recompense she can get is money (if she can collect) - but she's not being made whole at the criminal courthouse, either.

Our justice system can't unring the bell or undo the damage that's been done. Ir can't make an injured party whole. The civil system can award money to the victim of a tort and the criminal system can punish a person deemed to have committed an offense. But that's all it can do.

If the alleged victim of a criminal offense wants his or her voice to be heard, sit at the witness stand and testify under oath as to what happened and how it affected your life. Subject yourself to cross-examination. There is no place in the criminal courtroom for a so-called victim impact statement. Presumably the prosecutor has either talked with the alleged victim or has enough experience to know what an appropriate offer for a given crime is. I would also assume the judge has a pretty good idea of what's appropriate sentence.

See also:

"Failure to yield the right of way," The Defense Rests (May 24, 2011)

Dr. Big Brother?

San Francisco is was known as the home of free love and doing your own thing. 'Frisco was the center of the alternative counter-culture.

Now the city by the bay is about to vote on whether to allow Big Brother to make medical decisions.

A group has managed to gather enough signatures to hold a vote on whether or not to outlaw circumcisions in San Francisco. The initiative would make it a misdemeanor, punishable by a fine of up to $1,000 and a year in jail, for anyone to perform a circumcision on anyone under the age of 18.

What if it's a religious practice? Sorry. No dice.

What if there's a medical reason for it? Nope.

Personal preference? No.

Keeping it clean? Forget it.

Something, either the water, the enormous amounts of drugs ingested in the 60's and 70's or the escalation of property values, has turned the once-contrarian, anti-government population of San Francisco into a hotbed of zealots who feel it's their ordained role to tell everyone else how to live their lives.

I'll grant the proponents of the initiative that the baby placed on the table had no say in the matter, but does anyone even remember it? Was anyone really scarred by undergoing a procedure they knew nothing about when they were a newborn?

Little kids also have no say in when they go to the doctor, what medicines they're prescribed, where they go to school, when they go to bed, what they eat at dinner any any number of other choices that parents have been deemed responsible enough to make for their children.

Parents are given the task of doing what they believe is in their childrens' best interests. I, for one, don't want the government looking over my shoulder second-guessing every decision I make for my kids. The essence of this country is that we are free to do as we wish so long as we aren't harming those around us. You know, live and let live.

But the meddlers can't leave it at that. Instead of trusting people to do what they think is right (and most folks do a pretty good job of it), they want to peek into your bedroom, or your living room or your backyard and tell you what you should be doing.

If you don't want to circumcise your child, fine. Don't do it. If you don't want your kids eating french fries with their burgers, great. Don't order them. If you don't want your kids eating refined flour, fantastic. Don't use it. If you think spanking is wrong, good. Don't do it. If you don't want your kids watching television, climbing trees or playing competitive sports, wonderful. Don't let them.

But don't abdicate the role of parenting to the government. And don't stick your noses in my business.

Seeking link exchanges

I recently received the following e-mail (no link love, though)...

Paul,
I recently emailed you about exchanging links on your blogroll. I have the following three blogs that support my law practice. 

www.criminallawyerillinois.com
www.illinioisdui.us
www.federalcriminallawyer.us 

Can we exchange links?
Lewis Gainor

No, Mr. Gainor, we cannot exchange links at this time. You see, the blawgs I link to my blawgroll are blawgs that I read on a regular (okay, in some cases, semi-regular) basis. There was no quid pro quo in my linking to them. If the authors responsible for them found my blawg interesting then they were free to link to my blawg. I never emailed anyone asking them for a link exchange. I've also never taken down a link because someone didn't "return the favor."

The blawgosphere is a fairly liquid place. New blawgs come and go on a regular basis. Some folks start a blawg because they have something to say. Others start a blawg because some SEO person told them it was a great way to move their website to the front page of Google or Yahoo! or Bing.

The ones who did it for SEO are pretty easy to spot. Their posts are "keyword rich" and recite the law regarding the classifications of crimes and field sobriety tests. Those blawgs are rarely updated and soon fall into a state of disrepair when the author realizes he has nothing else to say.

On the other hand, the blawgs written by folks who have something to say are interesting and diverse. They are serious and funny. They make you laugh and they make you think. They tell stories. They make analogies. They don't have every possible keyword crammed awkwardly into their posts. They aren't forced.

Lewis, you are more than welcome to link to my blawg. If you want me to link to your blawg, on the other hand, you need to give me a reason why. Stop writing the SEO-style posts. Stop cramming the articles with keywords. Stop trying to sell someone something in every post. Tell a story. Put up a funny picture. Find your point of view and express it.

Don't blawg because you want more "link juice." Blawg because you enjoy sitting down and writing. I'll drop back by your blawg in a while. If I find it more interesting, then I may link to it.

Good luck. In the meantime, check out the following blawgs:

• Defending People
• Simple Justice
• Criminal Defense Blog
• Life at the Harris County Criminal Justice Center
• A Public Defender
• Probable Cause

Death of a revolutionary

The other day Norm Pattis wrote a blawg post asking who Jesus and Socrates were. I would answer that Jesus was a revolutionary who was killed because he represented a threat to the state.

If you read the Gospel of John you will find that the Roman governor, Pilate, had no desire to execute Jesus. That demand came from the Jewish high priests. But why?
The high priests were in the position at the pleasure of their Roman overlords. Much like the English colonialists, the Romans were content to allow the Jews some autonomy, provided there was some structure to "keep them in their place." The high priests had no tolerance for anyone who questioned the existing order.

“You are a king, then!” said Pilate.
Jesus answered, “You say that I am a king. In fact, the reason I was born and came into the world is to testify to the truth. Everyone on the side of truth listens to me.”“What is truth?” retorted Pilate. With this he went out again to the Jews gathered there and said, “I find no basis for a charge against him. -- John 18:37-38

The high priests were in the position at the pleasure of their Roman overlords. Much like the English colonialists, the Romans were content to allow the Jews some autonomy, provided there was some structure to "keep them in their place." The high priests had no tolerance for anyone who questioned the existing order.

Once more Pilate came out and said to the Jews gathered there, “Look, I am bringing him out to you to let you know that I find no basis for a charge against him.” When Jesus came out wearing the crown of thorns and the purple robe, Pilate said to them, “Here is the man!”
As soon as the chief priests and their officials saw him, they shouted, “Crucify! Crucify!”
But Pilate answered, “You take him and crucify him. As for me, I find no basis for a charge against him.” -- John 19:4-6

And that's just what Jesus did. He stirred up the masses with his parables of the ways in which the people were being oppressed by the Romans. He inflamed passions with his parable of the ways in which the high priests collaborated with the Romans. He taught the masses the importance of being self-sufficient.

Blessed are the meek, for they shall inherit the earth. -- Matthew 5:5

Those are the words of a revolutionary. Years after the fact the Roman Catholic Church deified Jesus and began to propagate the myth that he preached of an afterlife. The truth is, Jesus preached of a new kingdom on Earth - a kingdom of equality, a kingdom of justice, a kingdom of peacemakers.

These ideas were a threat to the status quo and to those who benefited from the way things were. Jesus had to die - his mere presence was a threat to the high priests.

Was his body in that tomb three days later? I have no idea. The accounts in the gospels were written years after the events portrayed and may have been authored to obscure the reality of who and what Jesus was. Could Jesus' body have been a metaphor for his revolutionary theories? Could the resurrection be a metaphor for the reigniting of the revolutionary spirit of the people?

Karl Marx wrote that religion was the opiate of the masses. Might religion have co-opted one the world's greatest revolutionaries?

Artificial reality

Artificial turf in front of the Harris County Civil Courthouse. What a perfect metaphor for what happens in trial.

In trial an action is deconstructed before our very eyes and ears. That same action, or a reasonable facsimile, is then rebuilt through testimony and physical evidence. But few, if any, of the actors really know what happened. Memories fade. We speculate. We look for patterns that we can plug what we see and hear into to try and make sense of it.

If you ever speak to artificial intelligence gurus they will tell you that the key to building a more intelligent machine is to develop pattern recognition algorithms so that the machine can make assumptions based upon the context of the information fed to it. That's how our brains work. We see part of a picture or part of a word and we fill in the blanks based on the context. Most of the time we're right -- but sometimes we're wrong.

Witnesses "refresh" their memories by reviewing documents prepared by someone else sometime after the events occurred. They testify in absolutes. Let's face it, most of us don't remember what we had for dinner two or three nights ago -- but witnesses will testify as to exactly what happened one night over a year ago based upon a casual glance.

The attorneys have an agenda. We ask questions that we know will give us the answers we need to fit into our theory of the case. We don't want a witness rambling on about what they saw, heard or thought they saw or heard.

We take the raw earth and we construct our own structure atop it. A structure that may or may not bear any semblance to reality. We then expect six or twelve folks plucked off the street to make sense of what happened and render a judgment as to who's at fault or who acted badly.

What happened on the night may be fact. But what we see and hear in the courtroom is anything but.

Man v. Nature? I'm putting my money on nature

Make no mistake about it, as this video indicates, we are just passengers on this ride called earth. We will not destroy the earth through our wanton wastefulness and pollution - we will destroy our habitat and be the tools of our own demise. Mother Earth was here long before us and will be here long after our time is up.

There are no balancing tests in criminal defense

This past Thursday I began a trial in a DWI case that I expected to take two days. I was a little bit off. We're not even close to being done. The state has yet to rest its case. We have new evidentiary matters to litigate. I spent most of the weekend holed up at my office researching case law, drafting briefs and reworking my cross examinations of the officers involved.

A friend of mine thought I was spending too much time working and not enough time playing and he posted the following comment on my Facebook page:

Work/Life = balance?

It made me think. Now I know that both Brian Tannebaum and Scott Greenfield have written about this on numerous occasions but I figured I'd add my two cents to the conversation.

In a perfect world there would be much to gain by balancing work and fun. But we don't live in a perfect world. If you've got a 9-to-5 job working for someone else then you can probably leave your work at the office and get to it the next day you show up to work. Hell, if you're a transactional lawyer you can get away with it.

I know it's a strain at home when I'm spending my weekends and nights at the office. It's not an easy task to raise two girls by yourself because your husband is working 60+ hours a week. Today would've been a great day to fire up the smoker and do a rack of ribs or a couple of chickens. It was a beautiful morning to cut the grass - or to till up the soil for this spring's garden.

But, if you found yourself before a jury facing criminal charges, would you want a lawyer defending you who is working with his life coach on how to balance the demands of work and home or would you want the lawyer who will spend every waking minute looking for the best way to handle every situation that might arise during trial?

I can be a real bear while I'm in trial. I'm short with people, I'm distant and I don't have any patience. Don't try to get between my client and me during trial. There's no room there and it's going to end badly.

No, I don't even attempt to balance work and home when I'm in trial. Does that make me a lousy husband and a bad father for a few days here and there? Probably.

Defending your constitutional rights and civil rights is not a 9-to-5 job. It's a commitment that takes a lot of time, a lot of energy and, in the end, doesn't always pay all that well. It's what I do and I'm damn proud of it.

Next weekend I can fire up the smoker and work in the yard. Right now I've got more important things to do.

Intellectually dishonest or just full of it?

With Supreme Court Justices Scalia and Thomas espousing original intent -- along with a gaggle of Tea Partiers and right wing Republicans -- an article I came across in Salon asked what original intent would look like today.

To begin with, the original document was silent on the right to vote. Voting rights were largely a matter of state law, and in 1787 most states limited the franchise to white, male, Protestant property owners, age 21 or older. The original Constitution did not allow for direct popular voting for president or the United States Senate, and there was no clear language even allowing for voting for members of the House of Representatives.

At the dawning of the Republic, those who could vote would cast their vote for electors who would select the President of the United States. Women, blacks, teenagers and those without property had no say. The mind shudders to think how some states might attempt to restrict the right to vote.

The original Constitution didn't include a Bill of Rights. Alexander Hamilton, one of the framers and authors of the Federalist Papers, argued against it. The Bill of Rights protects many rights the Tea Party considers hallowed, such as the freedom of speech and assembly and a right to bear arms. Lacking a Bill of Rights, these freedoms wouldn't be protected against limitation by the national government.

Yet more evidence that those believing the Constitution should be interpreted as if the Founding Fathers were asked have no idea what the intellectual consequences of such folly would be. Those that espouse that view also think the 1950's were an idyllic time in this country; conveniently forgetting about segregation and the great Red Scare.

Now, even if you want to attach the Bill of Rights to the Constitution for purposes of deriving original intent (and such a proposition would be iffy since the Constitution made no mention of those protections associated with the Bill of Rights), as written, the Bill of Rights only prohibits Congress from infringing upon certain rights -- there is no prohibition against action by the individual states.

But even if we consider the Bill of Rights, which was adopted in 1791, to be part of the original Constitution, there are still many limits on its use. Most importantly, as written, the Bill of Rights limited only national power -- not state power...Subscribe to an original intent reading of the Constitution and states are free to disregard individual rights, including free speech, property, religion and others.

Relying on original intent we would still have slavery as it was legally ended by the passage of the 13th Amendment. Blacks would still only count as 3/5 of a white man when it comes to votes and there would be no laws against segregation.

The Supreme Court would have no authority to interpret laws passed by Congress since the Constitution makes no mention of the Court's power to interpret the law.

Of course, if we followed the logic of original intent the United States would be involved in far fewer conflicts around the world as Congress would have the sole power to declare war. Not to mention that if we include the Bill of Rights, los federales would be unable to conduct warrantless searches. Federal criminal dockets would be a lot smaller since treason would be the only federal crime.

Ultimately the problem with original intent is that we have no idea what those men intended when they sat down to draft the Constitution. The Continental Congress may have gone into session to amend the Articles of Confederation with lofty political and philosophical aims but, once they got behind those doors, good ol' horsetrading was the coin of the realm.

If I can't figure out what my wife means at times, how on earth can we expect to know what a group of wealthy landowners meant when they met over 225 years ago? It defies all logic.