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I respectfully dissent


My blog and welcome to it.

Random thoughts, ramblings and rants about things legal, illegal, tortious, outrageous and otherwise.

Tuesday, October 6, 2009

Judges don't make law, but they do make dress codes

Last week I got to court before the roll call hoping to dispose of a case early in the day.  Typically in North Carolina a deputy in the courtroom makes announcements before the judge takes the bench. Usually he reminds everyone to turn off cell phones, don’t chew gum, take off hats and so forth.  This time there were some additional announcements specific to the judge who was presiding that day.  First was an admonition about tucking in shirt tails and a warning that if you “untucked” before getting out of the courtroom the judge would find you in contempt and you go to jail.  There was also a warning about jewelry in piercings, the deputy warned that the judge would not acknowledge anyone who had facial piercings with jewelry inserted.  I think there was an exception for females with pierced ears, but I remember men were warned that earrings must be removed.

I suppose the judge made these rules to uphold the dignity in the courtroom, but I wonder if that message is not lost on most of those present.  There was no announcement that everyone was presumed innocent until proven guilty.  Nor was there an announcement that each person before the court was entitled to Due Process and Equal Protection.  What the group of defendants (all had to appear in court that day) were told was that the presiding judge had decided that his own clothing preferences would be enforced under penalty of law.  The punishment for failing to meet his expectation was the judge throwing you in jail or ignoring you until you removed your facial hardware.  The message I heard was: “Comply with the whim of a State official or go to jail.”  What the people there in court that day learned was the justice of your cause mattered less than your appearance.

There is no statutory requirement that a party dress any particular way when they come to court.  There is an explicit rule requiring attorneys to wear “business attire” while in the courtroom.  A judge’s rule about correct court clothing varies like the width of the Chancellor’s Foot.  Defendants in jail are brought in wearing jail-issued jumpsuits and in shackles (unless it is a jury session), even though no one is dignified in that outfit.  The message: proper attire is mandatory unless the State would have to go to any trouble to accommodate it.

I don’t disagree that people should dress nicely for court, but if there are dress codes that carry the force of law, shouldn’t they be adopted through the democratic process and made known to everyone summoned to court ahead of time?

Tue, October 6, 2009 | link

Monday, December 15, 2008

My Arabic is rusty ...
... but I don't think throwing two shoes at someones head means "Welcome Liberator!"
Mon, December 15, 2008 | link

Thursday, November 6, 2008

A day at the polls not all that taxing
A short while before the election I was asked to be a volunteer voter protection lawyer for the Obama campaign. I picture the campaign staff thinking “we need someone to spend all day sitting on a folding chair, drinking coffee, eating donuts and watching 607 people slide ballots into an optical scanning machine.” Naturally my name came up. Since I am always willing to take a donut for the team, I agreed.

The training had me worried about getting a frosty reception from precinct officials and the night before I kept dreaming of confrontations I would have to deal with. I arrived at the polling place, a recreation center in Winston-Salem, N.C. at 6:15 a.m. All of the precinct workers were friendly; there was no trace of stink-eye.

Things were busy in the morning with about 70 voters an hour going through, that kept up until a little before noon. After that there was rarely a long line. I think the longest wait all day was 30 minutes. The only kink was when the scanner stopped working for a little bit because of a loose connection. The poll workers got it straightened out fairly quickly.

The best part of the day was watching the voters. There were all shapes, sizes and ages. Lots of people brought young children and babies. There were lots of older voters who had to go to a lot of trouble to vote, often using canes or walkers. At least 10 people voted curbside. There was not a large black presence among the voters, maybe about 10 percent. I spent a few minutes talking with brothers, one in second grade and the other in fourth. I asked what they thought about the election and was impressed that both knew about the candidates and even talked about the Libertarian party. The public education system is not failing those two. Seeing that over and over made me feel that I was seeing the best of America. Election day gives us a chance to break out of our usual circle of friends and family. I overheard a woman who described herself as a “very religious” home schooler having a conversation with a man said he did not believe in God, but did believe in poltergeists. I talked with a hard-core Republican who thought that global warming was a hoax, but who was trying to convince major car makers to build vehicles powered by natural gas.

About 5 people cast provisional ballots because their names did not appear on the rolls apparently caused by confusion about a change of address. For a while when it was busy, I volunteered to hand out “I voted” stickers.

I was impressed by the hard work of the election judges. The only dispute involved one voter who showed up minutes after the poll closing was announced. One judge wanted to let her vote, the chief judge said no, arguing that the rules must be enforced.

By the time the poll closed 607 people had voted. I had not had to protect any voters.

Since I was an Obama supporter I am happy with the result. I think Obama can be a great president. I agree that saying that Obama is post-racial or transcends race is farcical. This country will not be post-racial in my lifetime or the lifetime of anyone alive now. About a year ago, I was at the courthouse sitting around drinking coffee in a tiny room the lawyers share when a friend announced that was not going to vote because it did not make any difference. He said no matter who he voted for that after the election he would still be sitting at the same table with the cup of coffee, smoking and waiting for his cases to be called. I don’t agree with not voting but there is some truth to what he said. While lots of people are excited about a new day in America, I still have clients in jail who have bleak pasts and bleak futures. This country remains indifferent to the problems that doom too many young black men to spend much of their lives in prison. We ignore them when they are young and then pay a fortune to incarcerate them in their teens, twenties and thirties. Those problems are not going anywhere soon.

As for what I hope the new president accomplishes I will be pretty happy if his administration just avoids a series of major disasters. If a “cancer on the presidency” doomed Nixon, I would describe the Bush administrations as “plumb eat up with the dumbass.” Abu Ghraib, hiring trigger-happy mercenaries/contractors in Iraq, Katrina, the airport screening mess, the US Attorney firings, the constitution free zone of Guantanamo Bay, tortured definitions of torture, signing statements all traceable to the fact that Bush never cared very much about governing except as a means to reward those who placed him in office. If Obama can just not screw up, there will be a huge improvement.
Thu, November 6, 2008 | link

Friday, February 29, 2008

Gloom, despair and agony
1% of the U.S. population is in prison.
1% of U.S. homes were in foreclosure in 2007.
100% of the leadership of the House Committee on Oversight and Government Reform asks for a full investigation of steroid use by Roger Clemens.
Fri, February 29, 2008 | link

Tuesday, September 25, 2007

Solution in search of a problem
When I heard the Federal Bureau of Prisons' plan to standardize all prison religious libraries with 200 or so government-approved religious (per major religion) texts and prohibiting everything not on that list, my first thought was that someone had far too much time on his hands.  First, you gotta love the name, "Standardized Chapel Library Project."  The name oozes that bland bureaucratese that cloaks profoundly boneheaded government actions.  The project grew from a report that radical books that incite violence could creep into prison chaplain libraries.  The report, by the Justice Department's Inspector General, did not cite a single instance of any radical book actually being in the library, it just noted that the collections had not been re-screened since September 11, 2001.  The report focused on whether Muslim religious services were a means of introducing radical Islam into the federal prison system.
Apparently taking an inventory of all prison chaplain libraries was too burdensome, so the BOP opted to standardize the material with lists of approved tests for 20 major religions.  I wonder if the Bible passed muster, and if so, how.  The Bible has been used to incite violence for ages.  The books of the Bible are filled with violent images and vengeance.  The deviant Alex in "A Clockwork Orange" delighted at the violence he found in those pages.  Not only is violence depicted, but it is often encouraged.  Abraham is praised for being willing to kill his sonJephthah sacrificed his daughter as a burnt offering after winning a battle. Saul massacred the Amalekites, killing "men and women, children and infants, cattle and sheep, camels and donkeys," but spared the king.  When Samuel learned of this, he took his sword and killed the king. Lot's wife turned into a pillar of salt for looking at Sodom.  Uzzah killed instantly for touching the Ark of the Covenant to keep it from falling off the wagon.  All of these acts are things that today we would condemn as genocide, murder, child abuse or insanity.
So if the Bible is allowed, how can you come up with logical standards of what to exclude fearing it might incite violence?  To me that just shows the silliness of the whole BOP exercise.  Maybe there are some books that prisoners should not be allowed to read, "The Great Escape Manual" for example.  But the list of truly dangerous books must be fairly short.  The idea that religious books are a threat that requires government vetting of religious texts is laughable.  The BOP needs to find a real problem to solve.
Tue, September 25, 2007 | link

Wednesday, September 19, 2007

Insanity, legal fiction, dogs, ponies and political suicide
A local court has to decide if a man who killed four people in 1988, but was found not guilty by reason of insanity should be released from the mental hospital, Dix, where he has been confined since 1989.
The hearing is still going on today.  I know because the TV trucks were parked behind the courthouse today.  My guess at the result for Michael Hayes: no way, no how will he get out.  Ever.  I asked a friend of mine (a lawyer) if there was any set of facts that Hayes could establish that would lead to his release, he just laughed.  If you read the law Hayes must be released if he shows by a preponderance of the evidence that he no longer has a mental illness or is no longer dangerous to others.  If you read the local tea leaves (or a local pundit) you know Hayes won't get out.
According to news accounts, all of the six mental health workers (at least two psychiatrists) who have treated Hayes have testified that he is no longer mentally ill or a danger to others.  Rightly or wrongly, Dix psychiatrists have a reputation among defense attorneys as a rubber-stamp for the prosecution.  The fact that they are all testifying in favor of Hayes is significant.  They are also in a better position to know about his mental condition than anyone else since they have regular contact with Hayes.
It might be defensible to enact a law that provides: if you kill someone but are determined to be insane at the time of the killing, you will be confined in an institution for the rest of your life.  Maybe in balancing the risks we could rationally conclude that lifetime confinement is needed to protect the rest of society, even if the killer is not morally culpable.  Maybe that position is unduly harsh on the mentally ill.  At least it would be honest.
The law now creates a legal fiction, if you can prove you are no longer dangerous you can go free, but the very fact that you killed means that no set of facts that you could show will ever satisfy a court.  It is probably true that Hayes is no more dangerous than many others walking the streets.  It is probably also true that any judge who releases Hayes had better have alternate employment lined up.  A local columnist candidly called a ruling that would release Hayes "political suicide."  If I were the judge who had to hear the evidence and decide, I'd probably be reluctant to release Hayes, too. It would be hard to discount the chance, however slight, that Hayes could get into trouble or create a tragedy again.  But brutal honesty, just coming out and saying "Sorry Mr. Hayes, we can't risk letting you out," would be better than the annual dog and pony show we have now.
Court opinions from earlier hearings:
2001 hearing (release denied by same judge presiding in current case)
Wed, September 19, 2007 | link

Tuesday, September 18, 2007

"Use to be's" don't count anymore
I miss the old U.S.A.  We used to be able to honestly say "in America, we just don't (insert some human rights violation)."  The list of things that could plausibly go in the parentheses gets shorter every day.  Ten years ago I would have ruled out each of the following, now, not so much:


Tue, September 18, 2007 | link

Thursday, September 6, 2007

Forget a real lawyer, I want a psychic
I saw this ad shortly after reading a blog post about a public defender whose client wanted to hire a "real lawyer."  I'm not a public defender, but the majority of my criminal caseload, state and federal, is court appointed work so I have been in S.C. Ruffey's shoes.  Sometimes the defendant says something like "Don't be offended, but I am hiring a real lawyer." That reminds me of the way mafiosos say things like, "With all due respect, you are a lying sack of shit," because if the sentence contains "with all due respect" no one will be offended.
Getting dumped for a paid lawyer does not bother me much anymore.  Partly because I would not hesitate to take a court-appointed client away from another lawyer.  I think there are several things that make the average criminal defendant think that a paid lawyer is better than an appointed one.  One is that you tend to value things more if you have to pay for them.  Getting something for free sends the message that it is not worth much.  Another is that in the world that most criminal defendants live in there are few examples of people who get satisfaction from doing something because you believe in what you are doing.  Even if that job is not financially rewarding.  That view is not limited the ranks of the lower economic classes.  Martha Stewart and Scooter Libby could have plucked a typical PD (or me) and paid the equivalent of several years of our annual income to have our experience by their side at trial, but they chose traditional highly compensated lawyers.
At least those are the things I tell myself when I hear I am being replaced by a paid lawyer. However, when I get passed over for a psychic, I will be pissed.
Thu, September 6, 2007 | link

Wednesday, September 5, 2007

Singing the middle aged white non-gay senator blues
Ode to Senator Larry Craig (to the tune of "Busted" with apologies to Ray Charles and Johnny Cash)
My life is askew 'cause I tapped with my shoe, but I'm busted 
Polling is down near to the ground and I'm busted 
I've got an excuse that won't fly, and folks think I am gay 
The negative press gets bigger each day  
The Senate may take my office away I'm busted! 
I told the cop that I was alone, I was busted 
I hated to beg like a dog for a bone, I was busted 
The cop told me there ain't a thing I can do 
There've been complaints of gay sex in the loo,
I was in that bathroom with you, you're busted! 
Lord I'm not gay but a man can go wrong when he's busted 
The party I conned three times is gone and I'm busted 
The outlook is bleak and I promised to flee, 
But now I am trying to withdraw my plea, 
Oh what in the world has happened to me, but I'm busted!

Wed, September 5, 2007 | link

Wednesday, August 29, 2007

Stairway moment
I can think of plenty of times I have flubbed answers to a question in court.  I sympathize with Lauren Upton (Miss Teen USA) for being caught short.  Those moments of ineptitude are usually followed by coming up with dozens of great answers later.  I've heard there is French expression that roughly translates to "stairway moment" - coming up with the perfect response afterward while climbing up the stairs.  Here are some of my suggestions for her:
  • "That’s a good question.  There may have been a discussion of the lack of geographical knowledge at the department but I do not recall if I was involved.  I may have been involved, but I do not recall.  I’ll have to get back to you on that."
  • "Well Aimee, you can bet the Al Qaeda terrorists can find the USA on a map."
  • "Let me be clear.  I am not gay.  I never have been gay.  Even if you were tapping your foot and reaching into and adjoining stall in a bathroom in a Minnesota airport, you still can find America on a map."
  • "There are many ways you can learn about the location of America.  My sons are learning about the location of America by helping elect me president of America."
  • "There are known knowns; there are things we know we know. We also know there are known unknowns; that is to say we know there are some things we do not know. But there are also unknown unknowns -- the ones we don't know we don't know."
  • "So, welcome. Let's give a welcome to Macaca here. Welcome to America and the real world of Virginia."
  • "It doesn’t matter if they can’t find America on a map by my belief is we will, in fact, be greeted as liberators."
Wed, August 29, 2007 | link

Monday, August 27, 2007

We've got a law against that in North Carolina
Topping the list of scrotum-related stories today is this.
In North Carolina that's called maiming a privy member and it has been illegal since 1831.
Mon, August 27, 2007 | link

Here come da judge, here come da judge
Lawyer asks The Ethicist if he should blab about how a judicial candidate may have exposed him to herpes.
I don't know how I would have answered, but I would have tried to work the word "dictum" into my answer.
Mon, August 27, 2007 | link

Tuesday, July 31, 2007

People who like laws or sausages should never watch Michael Decker take a sponge bath under the legislative building
There is always a nadir.  I have watched North Carolina political scandals for most of my adult life, from Jimmy Green, to Rufus Edmisten, to Meg Scott Phipps, the lottery.  The North Carolina Department of Transportation has never gone more than a month or two without some type of graft (it has gotten to the point where citizens should be grateful that DOT employees are simply being rude to them rather than taking payoffs).
In listening to Jim Black testify at his sentencing in Raleigh today, I believe I heard the nadir.  Black testified that he gave representative Michael Decker $10,000 in the hope that Decker would stop living in his van and taking spongebaths under the Legislative building during sessions.
Maybe Decker just bought a nicer sponge.
Tue, July 31, 2007 | link

Friday, July 27, 2007

Days late and dollars short
The contempt case ex-Durham DA Mike Nifong reminds me of the Soviet Union's declaration of war against Japan after the nuclear bombings.  The whole fiasco played out under the noses of  judges, who are suddenly shocked, shocked! to find there were shenanigans going on. 
It should come as no shock that the contempt hearing was continued (again) to August 30.
Fri, July 27, 2007 | link

Thursday, July 26, 2007

A gross waste of public resources
Taxpayers paid a prosecutor, defense attorney, judge, bailiffs and 12 jurors to sit through this.
Just because you can prosecute someone does not mean you should.
What is newsworthy about the guy's mugshot?
Thu, July 26, 2007 | link

Monday, July 23, 2007

An troublesome hand-me-down
For the past several weeks I have been dealing with a particularly difficult client. He arrived under the typical red flag, his previous court-appointed lawyer had been allowed to withdraw and I was appointed in his place. I’m not going to get into the details of the case, but the biggest weakness in the State’s case is the fact that the identification of my client as the perp occurred from 125 feet away. This is a better “reasonable doubt” defense than I have had in any of the cases I have tried this year.

What makes him difficult is that he obsesses over irrelevant facts and is dumb as a box of rocks. He sends me page after page of letters filled with legal research he has copied from the law books at the jail. None of it remotely applies to his case. He gets angry with me for refusing to file motions based on his research. I am angry with him for being such an annoying ass. I’ve found myself thinking, maybe this guy is so dumb that I can’t be of any help to him. His personality is so obnoxious that I am not enthusiastic about helping him The contrarian part of me responds that he can’t help the fact that he is ignorant and his obnoxiousness probably stems in part from some kind of mental illness. Given his age I am unlikely to be able to persuade him to change his behavior. Finding the point between not wanting to tolerate bad behavior and understanding that he does not (and probably cannot) see the world as I do is tough.

If he would sit still and be quiet during his trial, we’d have a shot at acquittal. But he won’t do that. He’ll shake his head during the testimony, shift in his seat, and constantly badger me with questions and comments during the trial, all things that will distract me from doing my job.

If I was in another line of work, I’d quit working for him. But criminal defense attorneys cannot stop working for a client without permission from the court. Since this guy has already switched attorneys once no judge is going to permit him to do it again, I’m stuck with him, just like he is stuck with me.
Mon, July 23, 2007 | link

Wednesday, February 21, 2007

Dissecting the Black & Decker Deal

Anyone who regularly represents defendants in criminal cases can see that Jim Black and Michael Decker are not typical cases. Both pleaded guilty on the same day they were charged. That suggests that they were each able to negotiate exactly what they were going to plead guilty to. While most criminal defendants are not caught completely by surprise when they are charged, they are not consulted about what the prosecutor will charge them with. The timing of the pleas in both cases, with the news of the charge and the plea getting simultaneous public release, hints at a public show that was scripted weeks in advance and out of the public eye.

In federal court Black faces a maximum of ten years imprisonment. The charge was brought under a federal statute (18 U.S.C. 666), which prohibits bribery in connection with programs that receive federal funds. Black’s actual sentence will be determined by the federal sentencing guidelines. The Guidelines attempt to relate the seriousness of a crime with an “offense level.” Offense levels run from one to 43. Higher offense levels lead to longer sentences. According to the Guidelines, a public official convicted of taking a gratuity starts off at “offense level” 11. If the gratuity occurred on more than one occasion the offense level increases by 2 to 13. If the gratuity is more than $5000, the Guidelines increase the sentence depending on the size of the gratuity. The government alleges that Black received at least $25,000 from chiropractors and the plea agreement specifies that the total amount was less than $30,000. That total amount increases the offense level by 4 levels for a total of 17. If the public official was in a high-level decision making position the offense level goes up another 4 levels for a total of 21. The plea bargain provides that Black is entitled to a 3-level reduction in the offense level for acceptance of responsibility, reducing the offense level to 18. A level 18 offender in a federal case has a guideline range of 27-33 months imprisonment.

According to the factual basis the federal prosecutors filed in the Black case, Black learned that the chiropractors had been subpoenaed to testify before a grand jury. On the day before the chiropractors were supposed to testify, Black visited one of them and suggested that the three tell the grand jury that the payments were “a little bit of money” to help Black with expenses while running around the country. That activity could be considered and obstruction of justice leading to a two-level increase in the offense level. If the sentencing judge finds obstruction the offense level would be 20 and the guideline range would be 33-41 months imprisonment.

The plea agreement provides that Black will cooperate by submitting to interviews, testify against others and submit to a polygraph examination if required to by the federal investigators. This indicates that if the government is happy with the information that Black provides, the government could move for a reduction in his Guideline range for providing “substantial assistance.” Usually the government recommends a specific reduction in the sentence as a reward for providing substantial assistance. The amount of the reduction is ultimately up to the sentencing judge, but it usually is near what the prosecution asks for.

I was initially confused about why Michael Decker pleaded guilty in federal court to agreeing to accept $50,000 in exchange for supporting Black, identified in charging documents as “a particular candidate for speaker.,” but Black was not charged in federal court with that offense. Here is my theory to explain that: the Guidelines consider “relevant conduct” in determining a defendant’s sentence. Relevant conduct consists of any wrongdoing related to the offense of conviction that can be proved by a preponderance of the evidence. There is no requirement that the relevant conduct be charged formally. However, adding the $50,000 amount to the $25,000-$30,000 in the count that Black plead guilty to would increase Blacks offense level by four more levels. Black has denied Decker’s account and pleaded guilty to the Decker connected offense in state court while maintaining his innocence in what is called an Alford plea. Alford pleas are rarely accepted in federal court. A defendant in federal court can lose the reduction for acceptance of responsibility for denying involvement in relevant conduct. So if Black denied paying off Decker in federal court (and the feds have Decker to testify about the deal with Black) Black would lose the 3-point reduction for acceptance of responsibility. That is a seven-level increase.




Initial offense level



Increase for more than

one occasion



Increase based on $ value

+4 ($25K-30K)

+8 (at least $70K)

High level decision maker






Acceptance of



(no reduction for denying relevant conduct)

Offense level



Guideline range

33-41 months

70-87 months


The only reason I can think of for Black to plead guilty to related offenses in both state and federal courts is to attempt to argue in federal court at sentencing that since he has pleaded guilty to offenses in state court related to Decker, they should not be considered relevant conduct at his federal sentencing. Black plead guilty to a Class F felony (offering a bribe to Decker) and a Class H felony (obstruction of justice) in state court. Class F felonies for someone with no criminal record carry a presumptive minimum sentence of 13 to 16 months. The presumptive minimum sentence for a class H felony is 5-6 months. Black would be eligible for a suspended sentence in state court.

It would be interesting to see how my prediction turns out. All of the federal sentencing calculations are contained in a pre-sentence report that is sealed and not available to the public. There will be no way to know what, if any, relevant conduct Black is held responsible for. There will be no way to know whether Black gets a reduction for acceptance even though he denies paying off Decker. There will be no way to know if there was an obstruction enhancement for encouraging the chiropractors to mislead the grand jury.

 Jim Black information (charging document)

Jim Black plea agreement

Jim Black factual basis (filed by government)

Black documents from State Court

Federal sentencing guideline for unlawful gratuity

Federal sentencing table

Obstruction of justice guideline

Relevant conduct

Theft guideline (to determine increase based on dollar amounts)

Federal bribery statute 18 U.S.C. 666

Wed, February 21, 2007 | link

Wednesday, January 3, 2007

Was that wrong?
Canadian deputies suspended for off-duty frolic that ended up on the internet.  I guess they didn't cover not appearing in sex videos in rookie school.
Wed, January 3, 2007 | link

Friday, December 22, 2006

The "No Pants Dance" is not a part of standard legal practice
Inmate's girlfriend poses as lawyer to get into jail to have sex with boyfriend.  The gig is foiled when jail calls firm to tell them that one of their lawyers was caught having sex in visiting room.  The real lawyer was on maternity leave.
Fri, December 22, 2006 | link

Wednesday, December 20, 2006

Typical day in court
Every day criminal defense attorneys go to court and face people who would like nothing better than to put their clients in prison for a long time.  Prosecutors are often present as well.  Here is an example from the appellate courts.
Wed, December 20, 2006 | link

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 "The world breaks everyone and afterward many are strong at the broken places.  But those that will not break, it kills.  It kills the very good and the very gentle and the very brave impartially.  If you are none of these you can be sure that it will kill you too but there will be no special hurry."
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