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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.

Thursday, July 31, 2003

The Ballad of Che Clampett

Let me tell you a story about a man named Che,

He hated it in Cuba and had to get away,

When one day he was looking for a boat,

He thought to himself, “Shoot, my truck’ll float”

Redneck ride … float trip.


First thing you know, old Che’s a commdore,

Kinfolk said, “It’s not been done before.”

Che knew Miami was the place to be,

He gassed up the truck and put her in the sea.

90 miles … Coast Guard.


Now it's time to say goodbye to Che and all his kin,

Coast Guard caught ‘em and sent ‘em back again,

I hope to see them back sometime in this locality,

A genuine example of ingenuity.


Aren't these the kind of people we can use in America?  These guys have got to have some North Carolina blood in their veins.


Dennis Rogers in the N&O had a great tribute.

Thu, July 31, 2003 | link

Wednesday, July 30, 2003

Will the gentleman yield?
If our legislature acted like Japan's, I might actually consider watching C-Span.
Wed, July 30, 2003 | link

Legal discourse on vulgar term for intercourse
Burning man pic
The Smoking Gun has posted a lawyer's motion to dismiss a charge of "interference with school staff" (a misdemeanor) based on a student calling his principal "a fucker, a fag and a fucking fag."  The motion, which argues that the statement is constitutionally protected speech, is a great read.   It cites quite a bit of internet research on just how common the word is in our discourse.  Google searches for the term turn up some interesting things like the above photo from the Burning Man festival, as well as exactly the kind of stuff you'd expect.
My favorite part of the brief suggests "I respecfully dissent"as a milder version of the term that carries the same sentiment.
Wed, July 30, 2003 | link

Monday, July 28, 2003

"We have a Code 7 at Carribou Coffee ..."
FBI agents interviewed Marc Shultz after someone reported that he was reading suspicious material at a coffee shop.  The suspicious material was a Hal Crowther column headlined "Weapons of Mass Stupidity."
The agents asked to search his car and were fairly insistent that he provide detailed information about the article.  The FBI had this to say for itself:
"In this post-911 era, it is the absolute responsibility of the FBI to follow through on any tips of potential terrorist activity," an FBI representative said. "Are people going to take exception and be inconvenienced by this at times? Oh, yeah. ... A certain amount of convenience is going to be offset by an increase in security."
Is anything that makes us marginally more secure unquestionably a good thing?  Random searches of houses would make us more secure.  So would a series of checkpoints where cars and people could be searched. 
 I have gotten to the point where I cringe every time a government official begins a sentence with "In this post-911 era..."
Mon, July 28, 2003 | link

Saturday, July 26, 2003

Sorry about that
Appeals are essential to freeing the wrongly convicted, according to an editorial in The Wichita Eagle.  The paper points to three recent incidents where rape convictions were overturned after DNA testing.
Actually a claim of innocence is difficult to raise on appeal.  Only errors of law can be raised on appeal.  Common errors are: admitting evidence that should have been excluded, errors in instructing the jury, or failure of the prosecution to disclose exculpatory evidence.  Innocence can only be raised by an attack on the "sufficiency of the evidence."  The appellate attorney would have to convince the appellate judges that viewing the evidence in the light most favorable to the state that no reasonable jury could have concluded that the defendant was guilty.  That is a pretty tough standard to meet.
Most of the exonerations that have resulted from DNA evidence have come in a post-conviction attack like habeas corpus or what is called a "Motion for Appropriate Relief" or MAR in North Carolina.  Only in those types of proceedings can a defendant try to introduce evidence showing that he could not have committed the crime.  Usually there will have to be an explanation for why the new evidence was not presented at trial.
For me the scary thing that DNA evidence has shown is the fallibility of the trial process.  Convicting the innocent is ultimate failure.  In nine years of criminal defense work, I can think of only one or two cases where DNA testing had any bearing on guilt or innocence.  For example, an armed robbery or burglary case would not usually involve DNA evidence.  How many people are serving time for a crime they did not commit but DNA is not available to definitively rule them in or out?  If the overall error rate is one-tenth of one percent, and there are 34,026 and 115,207 on probation in N.C. we could easily have 34 innocent people in prison and another 115 on probation.
Sat, July 26, 2003 | link

Friday, July 25, 2003

Leaky ethics
Would it be ethical for a prosecutor to reveal to a columnist that gay porn was found on a murder defendant's computer or that there the prosecution would attempt to use the website of a gay escort as evidence?  Monkeytime asks this question on his blog.  He is writing about the Peterson case and assumes that a the columnist from the Durham Herald-Sun must have learned about what was on Peterson's computer from either the DA or the cops.
A lawyer in a case is barred from making out-of-court statements if there is a reasonable likelihood that the statement would materially prejudice the trial, according to Ethics Rule 3.6.  The rule prohibits disclosure of information that is likely to be inadmissible if the information creates a substantial risk of prejudicing the trial.
I have only casually followed the Peterson trial.  But it's hard to understand how the presence of gay porn on Peterson's computer is relevant to his wife's death.  Since I clicked on the escort website, there is gay porn on my hard drive somewhere now.  The fact that an image appears on a hard drive means only that someone who used the computer may have looked at it.  For the gay porn angle to be relevant and admissible in the Peterson trial, the DA would have to show how this evidence would help the jury decide if Peterson killed his wife or not.  If I'm right and the gay porn is inadmissible, there is a good chance that if the leak came from the prosecution, it was a breach of ethics.
Police are not bound by the attorney ethics rules.  So if the cops leaked it without the cooperation of the DA, there probably would not be an ethics violation.  The only thing to keep the cops from leaking would be a "gag order" from the trial judge.
Fri, July 25, 2003 | link

Tales of the gun
According to Newsday, the man who killed New Yok City Councilman James Davis at City Hall bought the gun he used in Snead's Ferry North Carolina in 2001.  A buyer must have a pistol permit to buy a handgun in North Carolina.
The article mentions that the shooter, Othniel Askew, had two arrests: one involving chasing a naked man with a hammer and the other for larceny, but he was never convicted.  The story later states:
In the Chelsea incident, he pleaded guilty to harassment and an order of protection was issued against him. The federal Brady law prohibits anyone with a restraining order against him from purchasing a gun. However, many states' records are not up to date, because of lack of funds or computer equipment.
It sounds as if Askew must have been convicted of something if he pled guilty.  A misdemeanor conviction (unless it involved domestic violence) would not bar handgun possession.  As for the protective order, the Brady law only prohibits someone currently under a restraining order from purchasing or possessing a gun.  It is quite possible that the restraining order, based on a 1996 incident, was no longer in effect when Askew bought the gun in 2001.  North Carolina domestic violence restraining orders (often called 50B's) normally last for one year and can be renewed for a second year.
Fri, July 25, 2003 | link

Wednesday, July 23, 2003

Oyez, Oyez, Oh no!
An Iowa judge has jettisoned the black robe and presides in teal.  This slippery slope started when Chief Justice William Rehnquist tried out gold stripes.
Wed, July 23, 2003 | link

If this is patriotism ...
"Law and Order is like patriotism - anyone who comes on strong about patriotism has got something to hide; it never fails. They always turn out to be a crook or an asshole or a traitor or something."
- Bill Mauldin, cartoonist
In the investigation of the attacks on Sept. 11, 2001, the FBI made little attempt to distinguish between terrorist suspects and people they discovered who may have violated immigration laws but had no connection to terrorism, according to the Justice Department's Inspector General.  In the eleven months after Sept. 11, 2001, 762 aliens were detained as a part of the investigation based on immigration violations.  The Justice Department then adopted a policy requiring FBI clearance before any detainee could be sent home or released.  The clearnance process took an average of 80 days.
84 of the detainees were locked down (confined to cells) 23 hours per day and were cuffed, shackled anytime they were out of their cells.  The Inspector General found a pattern of verbal and physical abuse of detainees confined in the Metropolitan Detention Center in New York, which is run by the Federal Bureau of Prisons.  The conditions were much better for inmates at a county-run jail in New Jersey.  A few incidents investigated by the Inspector General:
  • During a physical exam, a Bureau of Prisons doctor told an inmate, "If I were in charge, I would execute every one of you for the crimes you did."  Since most detainees were picked up for immigration violations unrelated to terrorism, the doctor would imposing the death penalty for visa violations.  The trigger-happy doctor got a verbal reprimand.
  • An INS jailer held a loaded gun to a detainee's head and threatened him while transporting him to another facility. (investigation ongoing)
  • FBI agents illegally searched an Arab-American's home, vandalized it, stole things and called him a terrorist. (investigation ongoing)
  • An INS detention supervisor entered a gas station and demanded "papers" from the Middle Eastern owner, insulted him and ran the man's and his children's names through an immigration database. (investigation ongoing).

All of this information comes from a report by the Justice Department's Inspector General.  The regular reports to Congress on investigations of civil rights violations are required by the Patriot Act.  But actually none of the abuses, alleged or proved have anything to do with activities carried out under the Patriot Act, as Prof. Eric Muller pointed out a few weeks ago on his blog.

If these abuses are true, they are sad commentary on a nation that prizes liberty and the rule of law.  I don't recall many (if any) of the 762 detainees being linked to terrorist activity, but for months they were treated as though they were.  With the steady drumbeat of "increased security" and "war on terror" we have forgotten that some of the sorriest episodes in our history came when we overreacted to a perceived theat.  Terrorists are a theat to us, that really is nothing new, but with misguided zeal, we are also a threat to each other.

Wed, July 23, 2003 | link

Monday, July 21, 2003

I could have sworn it was right here.
I spent most of Saturday helping relocate part of the Appalchian Trail near Burke's Garden, Virginia.  When the new section is open hikers in that section will save about 80 steps.  The relocation also lessens the elevation change.  Unfortunately, it will also makes a highly accurate GPS model of the trail by Del Doc slightly obsolete.
Each section of the Appalachian Trail (it is about 2100 miles long) is taken care of by volunteer trail maintenance groups like PATH, the one I joined.  The Appalachian Trail Conference oversees management of the trail.  I once wondered "how much maintenance could a footpath need?"  The answer is a lot.  Parts of the trail erode, trees fall, brush tries to take over.  Sometimes a part of the trail is relocated.  We spent Saturday "sidehilling," creating a flat footpath on a slope.
I learned that Burke's Garden got its name when a group of surveyors came through in the 1700's.  One of the surveyors, Burke, peeled potatoes for a meal and scattered the peels on the ground.  When they returned the following year, potatoes were growing there, so they dubbed it "Burke's Garden."
There is also a rumor that Vanderbilt wanted to put Biltmore there, but the owners refused to sell the land to him.
Mon, July 21, 2003 | link

Mission Creep
mushroom cloud
The first prosecution under NC's Nuclear, Biological, or Chemical Weapons of Mass Destruction statute is not a terrorist but a methamphetamine maker.  DA Jerry Wilson, whose jurisdiction includes Watauga County, charged Martin Dewayne Miller with two counts of manufacturing a weapon of mass destruction based on his methamphetamine making operation, according to the Durham Herald-Sun.
The alleged WMD's are the highly toxic chemicals that are the byproducts of methamphetamine production.
At least one other DA has said he intends to follow Wilson's lead.  Wilson called the current methamphetamine laws "woefully inadequate."  Forsyth County DA Tom Keith complained:

"I've probably got eight or 10 bills before the legislature.  It is extremely difficult, with all the defense attorneys in the General Assembly, to get tougher bills passed when they also have to vote on prisons."

The option then when the legislature does not fix the penalties high enough to suit the DA, is to simply search for another crime and charge that.  Since someone could die from ingesting methamphetamine why not charge every manufacturer with attempted murder?  Or since we are 20 or so years into the "War on Drugs" why not charge drug dealers with treason or use military tribunals?  This mission creep smacks of a tendency to label undesireable activities as "terrorism."  Several months ago I was in court and heard a judge tell a drug defendant that drug dealing was a form of terrorism.  Selling drugs may be less serious or more serious than terrorism but it is not the same thing.  Terrorists use threats and violence to acheive a political end.  Drug dealers sell contraband and are motivated by profit.  If Miller is a meth pushing drug dealer why should he be prosecuted as a terrorist?

The statute defines WMD like this: "Any weapon, device, or method that is designed or has the capability to cause death or serious injury through the release, dissemination, or impact of  radiation or radioactivity; a disease organism; or toxic or poisonous chemicals or their immediate precursors."   If you follow the logic of the DAs pushing this, a cigarette could be a WMD, since it is a "device ... that has the capability to cause death or serious injury through the release ... of toxic or poisonous chemicals."

If we are going too easy on meth dealers, the legislature should increase the penalty.  Most legislators like to appear tough on crime.  As bad as a meth lab probably is (I've never been to one) it is not the same as a weapon of mass destruction.  As for the criminal defense attorneys in the General Assembly that are bottling up Keith's bills, that is nothing but some kind of strange paranoia.  There are 50 Senators in the General Assembly, 17 are attorneys, 6 were endorsed by the NC Police Benevolent Association.  Out of 120 in the House 19 are attorneys, with 6 endorsed by the PBA.  I haven't done exhaustive research but few lawyer-legislators have substantial criminal defense ties.  I found only two (William Culpepper and Martin Nesbitt) who regularly practice criminal law.  The lawyer members include some rightward leaning members (Leo Daughtry, Paul Stam, John Blust, Patrick Ballantine, Ham Horton)  Most resistance to increased penalties is a result of cost from increasing prison capacity.

NC's anti-WMD statute was passed after the September 11, 2001 attacks.  The minimum sentence upon conviction would be 12 years.  Currently meth makers could be charged with Methamphetamine Trafficking if they are found in possession of least 28 grams (about one ounce) of meth.  The conviction would have a minimum sentence of 5 years 10 months. 200-gram amounts have a minimum of 7 years, 6 months while 400 grams would result in a minimum of 18 years 9 months.  If that is too lenient, elected officials should increase it, but calling a Watuaga County drug dealer a terrorist is not the answer.

Mon, July 21, 2003 | link

Friday, July 18, 2003

Not another peep out of you
Voyeurs beware in North Carolina.  Effective this December it will be illegal to "peep secretly" into a room occupied by either a male or female.  Under current law it is only illegal to peep secretly into a room occupied by a female.  However either a male or female peeper can be charged.
Effective Dec. 1, 2003, it will be a class 1 misdeanor (up to 120 days in jail) to peep secretly into a room occupied by another.  If you are peeping while in possession of a camera it will be a class A1 misdemeanor (up to 150 days in jail).  If you take a picture "for the purpose of gratifying sexual desire" it is a class I felony (up to 15 months imprisonment).  Possessing an image taken in violation of this law would also be a class I felony.  Distributing such images would be a class H felony (up to 30 months imprisonment).
Check out the new law here.
Have a good weekend.  I'll be seeing you.
Fri, July 18, 2003 | link

Thursday, July 17, 2003

Now available in tablet form
God must be glad that Judge Roy Moore is on his side.  Alabama's Ten Commandments Judge criticized the hypocrisy of the federal court that has ordered the removal of the monument he stuck in the Alabama Supreme Court building.  He said:

"That's the issue in this case: Can the state acknowledge who God is? ... The god that's on your money. The god that's in the pledge. The god in your oath 'so help me, God.' ... The courts are hypocritically saying that we can place our hand on the Bible and say 'so help me, God, we'll do our job.' But when we get in office, we can't say who he is. That is hypocrisy."

Found on al.com

If the question is can the state acknowlege God, then the answer should be no.  How can a government acknowledge God without establishing Judeo-Christian beliefs as a preferred or state-sanctioned religion?  I've always thought that it was a questionable call about the national "In God We Trust" being printed on our money but the courts had to draw a line, and that is one spot where they drew it.  Moore seems to take the absolutist position that once any government involvement in religion (such as the motto) is permitted, then it is hypocritical not to simply permit everything.  The function of the appellate courts in this country (especially courts of last resort like Moore's) is to decide where the line is drawn.  If he calls line-drawing hypocrisy then he chose the wrong profession.

The oath and Pledge of Allegiance are not good analogies because any person can choose to affirm rather than take an oath and no one can be required to recite the pledge.

And another thing, would some sort of state seal of approval really benefit a religion?  When the government has balanced the budget, found Bin Laden and Saddam, fixed every pothole, cured poverty, ended pollution and jailed the last criminal, maybe I'll consider letting it pick my religion.

Thu, July 17, 2003 | link

Wednesday, July 16, 2003

The law defines an ass
mud flap girl
The Peek-A-Boo Lounge and Temptations II in Bradenton, Fla. sued to overturn a local ordinance banning public nudity anywhere in the county.  The ordinance defined female nudity as any time the breasts were less than 1/4 covered or the buttocks were less than 1/3 covered.
The opinion traces the complex adult dancing jurisprudence of the U.S. Supreme Court.  For a case about nudity it is a pretty dull read.  Two parts stand out though.  First the local ordinance exhaustively defined buttocks in order to define just what had to be 1/3 covered:

"The area at the rear of the human body (sometimes referred to as the gluteus maximus) which lies between two imaginary straight lines running parallel to the ground when a person is standing, the first or top such line being 1/2 inch below the top of the vertical cleavage of the nates (i.e., the prominence formed by the muscles running from the back of the hip to the back of the leg) and the second or bottom such line being 1/2 inch above the lowest point of the curvature of the fleshy protuberance (sometimes referred to as the gluteal fold), and between two imaginary straight lines, one on each side of the body (the ‘outside lines’), which outside lines are perpendicular to the ground and to the horizontal lines described about and which perpendicular outside lines pass through the outermost point(s) at which each nate meets the outer side of each leg. Notwithstanding the above, Buttocks shall not include the leg, the hamstring muscle below the gluteal fold, the tensor fasciae latae muscle or any of the above-described portion of the human body that is between either (i) the left inside perpendicular line and the left outside perpendicular line or (ii) the right inside perpendicular line and right outside perpendicular line. For the purpose of the previous sentence, the left inside perpendicular line shall be an imaginary straight line on the left side of the anus (i) that is perpendicular to the ground and to the horizontal lines described about and (ii) that is 1/3 of the distance from the anus to the left outside line, and the right inside perpendicular line shall be an imaginary straight line on the right side of the anus (i) that is perpendicular to the ground and to the horizontal lines described above and (ii) that is 1/3 of the distance from the anus to the right outside line."

That is the best 315- word definition of "buttocks" I have ever read.  If only it had mentioned Momma, trucks, trains, getting drunk and prison, it could be the perfect country and western song.

The other great moment in the opinion is the bars' response to the county's claim that the businesses created problems for neighbors.  The Peek-A-Boo Lounge got an award in 1996 from the Manatee County Sheriff for its "outstanding contribution to the community."

Wed, July 16, 2003 | link

Tuesday, July 15, 2003

About the "Christian" 10 Commandments
I agree with Ed Cone's take on my comment about the 10 Commandments monument in Alabama.  I said:
How could someone who is not a Christian see that monument as anything other than the court endorsing the Christian religion.”
Ed said:
Hmm. Seems like the Jews have some claims there, too, no?
Well yes.
Ed mentions that acceptable displays could include seminal legal codes from many cultures: maybe the 10 Commandments, the Constitution and the Hammurabi Code.  I agree but might add the Magna Carta.
I spend a good part of my life with the law.  Lawyers and others refer to the majesty of the law, but often it's not very majestic.  The saying, "if you like laws or sausages, never watch either one being made" is true.  Laws are the result of political compromise, influence peddling, logrolling etc.  The US Constitution condoned slavery and counted blacks as 3/5 of a person.  Laws that bind us these days have no claim to divine inspiration.  Each is a product of a political process.  Legality and morality may overlap, but they are not the same.
Would it offend the Almighty for me to build a deck without obtaining a building permit?
Tue, July 15, 2003 | link

Victim of "Love Court"
In my county in N.C. we have a special court set aside for domestic violence misdemeanors.  It is known (not affectionately) as "love court."  The local DA has a "no-drop" policy for any domestic case.  It seems to mean in practice (the policies are rarely written down) that once a prosecuting witness has reported a domestic violence incident, the state will not drop the charges at the victim's request.  The victim can be subpeonaed and required to appear for court and to testify.  This policy is in place in several other districts in N.C.  The intent is to keep the victim from being intimidated out of testifying by her abuser.  This is a laudable goal.
It is not unusual for a victim to take the stand and deny that there was any abuse.  There are two main reasons for this: either she is still afraid of the guy and knows that the maximum 150-day sentence for a misdemeanor won't protect her forever, or the couple is still together and the incident doesn't seem nearly as serious as it did at the time she pressed charges.
As I sat in "love court" the other day and watched the stories unfold, I saw this happen:  Defendant is charged with "communicating a threat" to his live-in girlfriend.  Allegedly he told her "I'll kill you."  By the time of trial they had reconciled and the victim did not want to go forward with the case.  The ADA in court that day denied her request following the no-drop policy.  I don't know this, but I suspect the victim told the ADA that she no longer recalled a threat.  Police officer testifies that she heard the defendant say "I'll kill you."  Victim testifies saying that she does not recall a threat.  The case is then dismissed because a communicating threats charge requires proof that the target of the threat heard the threat and believed it.  The ADA then asks the judge to find that the prosecution was frivolous and malicious and require the victim to pay the costs.  Isn't the state essentially saying "Judge, this case I just prosecuted was frivolous and malicious, please punish the woman, who minutes ago asked me not to go ahead with the case."  If as I suspect, the ADA prosecuted the case knowing the evidence was fatally defective, isn't the state more responsible than the victim for the malicious prosecution?
Tue, July 15, 2003 | link

Monday, July 14, 2003

Hard time, really hard
Junior Allen
Junior Allen was convicted of 2nd Degree Burglary in 1970 and sentenced to life.  According to the News & Observer, he has been been eligible for parole for 25 years but has been denied every time.  The Department of Correction website lists 47 infractions.
Allen was sentenced under laws that have been changed several times since his conviction.  Someone convicted of 2nd Degree Burglary now could serve no more than 44 months in prison, meaning that the state would have to release him unconditionally at the end of 44 months.
Just how bad Allen is depends on who the reporter the reporter was talking to.  Parole commissioners call him a threat to society.  Prison officials, who have day-to-day contact with Allen don't judge him so harshly.
The main justification the parole commission gives for keeping him locked up is the "threat to society" bit.  Is that really enough reason to keep a person in prison?  Maybe Allen will run right out of prison and steal another TV.  If so, he can serve more time.  Locking someone up beyond 30 years (for TV theft) because we're afraid he might offend again is ludicrous.  When the legal system sets up a situation like this and then tries to sell it to the public, it undermines respect for the system.  How can anyone look at this result and feel that justice is being served? 
Mon, July 14, 2003 | link

It's always funny until someone loses an eye
All the attention paid to mounting casualties at the running of the bulls in Pamplona, Spain has overshadowed the carnage at the annual "Running of the Tiny Cars" in Altoona, Pa.
small car
Against doctors orders, aging males shoehorned themselves into tiny cars during the annual event resulting in several backaches.  One participant was struck by a wayward fez.
Mon, July 14, 2003 | link

Sedition anniversary
John Adams
Today is the anniversary of the signing of the Alien and Sedition Acts in 1798.  
In preparation for an anticipated war with France,  President John Adams signed laws authorizing him to imprison or deport citizens of enemy nations or of friendly nations if he considered them dangerous. A companion Sedition Act provided fines or imprisonment for anyone criticizing the government. Adams was a Federalist so most of the targets of the Sedition Act were Republicans, who were led by Thomas Jefferson.  Jefferson and the Republicans won the 1800 election and the Sedition Act expired during his administration.
Mon, July 14, 2003 | link

Saturday, July 12, 2003

Pen pal in the State Pen
Susan Smith
Susan Smith, serving life for drowning her children after claiming that they had been taken by a carjacker, is looking for a pen pal.  Writeaprisoner.com, a site that posts letter requests from prisoners, posted her request for the $40 fee.  Smith paid the fee from her account where she keeps money she earns form prison jobs.
The attention has caused the website to ask Smith to withdraw her ad.  There are about 10-12 N.C. prisoners who have posted their names (and photos) on the site, including ones convicted of second-degree murder and and forcible sex offense.
Smith's ad reads:

I am 31 years old.  My birthday is September 26.  I am looking to meet new people and, hopefully, become friends.  During my spare time, I enjoy reading, working puzzles, and writing.  I love rainbows, Mickey Mouse, the beach, the mountains, and waterfalls.  My favorite color is navy blue and my favorite flower is the daisy.  I am a Christian and I enjoy attending church.  I consider myself to be sensitive, caring, and kind-hearted.  I´m currently serving a life sentence on the charge of murder.  I have grown and matured a lot since my incarceration, but I will always hurt for the pain I´ve caused so many, especially my children.  I hope to receive letters from those who are not judgmental and who are sincere.  I look forward to hearing from new people and, hopefully, finding new friends.  May God bless each one of you!

Sat, July 12, 2003 | link

Friday, July 11, 2003

Weapons search continues
The still elusive WMD's
Fri, July 11, 2003 | link

You have the right to hot sauce, you have the right to honey mustard
If you can afford sex, sex will be provided.  At least in Fayetteville.
Fri, July 11, 2003 | link

Those zany Mounties
Just when I thought thought the police antics couldn't get weirder comes this story from Canada.  Royal Canadian Mounted Police suspected two teenage suspects of murder.  A detectives posed as gangsters, befriended the teens and made them believe they were being taken in to an organized crime gang.  Then detectives convinced the teens that the cops were closing in on them for the murders and they should come clean to the "gangsters" so they could help them cover their trail.  Confessions followed.
The key difference between Canada case and an earlier post about manufactured evidence is that the teens in Canada did not believe that they were dealing with the police.
At some point you have to be concerned about whether the pressure, whether from law enforcement or pretend gangsters will produce false confessions.  Pile enough rocks on my chest and you'd be surprised at the things I'd confess to.  Of course juries can get wise to this.  The story noted that the RCMP used "positively ovwhelming inducements" in the words of the Candian Supreme Court to get a confession from an 18-year old suspect in the killing of 14-year-old.  The first trial ended in a mistrial and the defendant was acquitted in a second trial when the second jury did not believe the confession was true.  Thanks to police shenanigans there either an innocent person was tried twice for murder or a murderer got away with it.
Fri, July 11, 2003 | link

Thursday, July 10, 2003

Evidently a fraud
Police cross the line in New Jersey when they fabricate evidence in order to trick a suspect into confessing.  In an opinion issued July 7, a New Jersey appellate court ruled that detectives who created a tape of an eyewitness interview and played it for a suspect, Ronald Patton, in a murder in the hope that he would confess.  After hearing the tape, in which a detective pretended he was an eyewitness who saw Patton shoot his girlfriend, Patton said "who was that motherfucker?" and then confessed.
The New Jersey court said that it was permissible for police to lie about evidence that they have, but when they actually create evidence to use to fool a target that:
the police conduct in this case illustrates the close correlation between police conduct that can increase the inherently coercive atmosphere of custodial interrogation and conduct that is excessive, shocking, and fundamentally unfair and therefore violative of due process
Amazingly the prosecution was permitted to play the tape of the bogus eyewitness in court to show the context of the defendants confession.  The jury was instructed that the eyewitness interview was bogus.
North Carolina is more tolerant of fabricated evidence. In a 1983 case the N.C. Supreme Court examined a case in which Raleigh Police detectives took a knife identical to one used in a stabbing, pricked a detective's finger, put his fingerprints on the knife then showed the knife to the suspect telling him that the fingerprints were his.  The suspect then confessed.  The court stated: "while deceptive methods or false statements by police officers are not commendable practices, standing alone they do not render a confession of guilt inadmissible."
In a Florida case from 1990 the court ruled that the police went too far when they fabricated two scientific reports showing that semen on underwear belonged to the defendant.
Many tricks that result in confessions don't result in the confession being excluded.  For example:
  • police placed an invisible powder on a pen they gave to defendant to use so that when they later conducted a fake gun "blow back" test, it appeared to her that she still had gun powder on her hand
  • defendant confronted with fake polygraph test results indicating that he had lied to police
  • police showed defendant an eyewitness composite sketch of himself actually drawn by police while observing him through a one-way mirror

Outside of undercover operations why should law enforcement officers ever be permitted to deliberately mislead someone.  Attorneys are ethically prohibited from making false or misleading statements in the course of their work on cases.  Given the close relationship between cops and DA's, why can the cops get away with things that would cost the DA his law license?

Thu, July 10, 2003 | link

Wednesday, July 9, 2003

Guideline grief
Most folks and even many lawyers have never heard of the Federal Sentencing Guidelines. All federal judges have heard of them and some hate them.  A federal judge in Manhattan, John Martin, hates them so much he is giving up his lifetime appointment accoding to the Christian Science Monitor. A Bush appointee and former prosecutor, it's safe to assume that Martin is no bleeding heart.  The Guidelines are a fairly complex set of sentencing rules that substantially limit judges' discretion in sentencing.  My handbook on the Guidelines runs almost 2,000 pages, so understand that the following oversimplies the process.  The way they work is that once a defendant's criminal history and the seriousness of the offense are calculated the rules spit out a minimum and maximum number of months and the judge picks the spot in the range for sentencing.  For example imagine an armed bank robbery would be an offense level 27.  If the convicted robber had no criminal record the Guidelines would call for a sentence of at least 70 but not more than 87 months.  Under the Guidelines the judge's job is to pick at what point between that 70 and 87 to sentence the defendant.
The reaction of judges is mixed.  Most federal judges I have appeared in front of in N.C. are guideline friendly.  It seems that judges in the Northeast have more of a tendency to chafe under them.
A lot of the grousing is based on Congress' tendency lately to dictate to the Sentencing Commission exactly what the guidelines should be on hot-button issues like child porn.  Some judges objected to recent Guideline changes that would have reported instances where individual judges departed from the Guidelines.  Last spring a Congressional committee discussed subpeonaing a federal judge's sentencing records.  The subpeona was ludicrous because sentencing hearings are open to the public and sentencing records are available.  Also the Sentencing Commission does extensive statisitcal reporting on the Guideline application and departures.
Nationwide there are departures in about 18 percent of sentences.  Departures in the Fourth Circuit, which includes N.C. are in the single digits.
Wed, July 9, 2003 | link

Tuesday, July 8, 2003

Dropping on dimed
Old Well
This smells like a controversy looking for a place to happen.  A UNC senior named Michael McKnight who heads a group that calls itself "Committee for a Better Carolina" is complaining that the summer freshman reading assignment of "Nickel and Dimed: On (Not) Getting By in America," by Barbara Ehrenreich is too liberal.  Ehrenreich is a Time columnist whom most would label a liberal.  She spent time working in low-paid jobs in three cities and wrote a book about her experiences.  I haven't read the book but I'm sure there is a liberal bent.  There is nothing like spending time in the yoke of  the man to make you question the system.
Of course, as a senior, McKnight is not required to read the book.  Neither are the incoming UNC freshmen because the assignment is optional and ungraded.  After at least three years in college, McKnight has apparently found an injustice that begs for his attention in the form of full-page newspaper ads, a meeting with Republican legislators and a Raleigh news conference.  Either that or he is trying to burnish his "conservative" credentials in the hope of landing a job as a conservative activist. 
I read a lot of political philosophy that I did not agree with and much that I did not understand while at UNC.  It did not turn me into a Socialist.
I have taught a few classes part-time and students don't set the agenda.  They take the class to hear what I'm going to teach.  If you want to write the syllabus, get your own class.
Tue, July 8, 2003 | link

Monday, July 7, 2003

Sodomy in Charlotte
Charlotte Police are apparently determined to salvage something from the remains of N.C.'s anti-sodomy law.  Sodomy was banned in N.C. thanks to N.C. Gen. Stat. 14-177, which reads "If any person shall commit a crime against nature with mankind or beast, he shall be punished as a Class I felon."  Courts defined "crime against nature" (CAN) to include oral or anal sex.  Private acts between married couples were generally thought to be exempt.  Private acts between unmarried couples (male or female) could result in prosecution.
Enter the U.S. Supreme Court in Lawrence v. Texas.  In short the court ruled that private sex activity between consenting same-sex adults could not be the basis of a prosecution.  I assume the same rule would apply to male-female unmarried couples.  I have not run across any CAN cases based on activity between consenting adults in my work.
A law professor posted this excerpt from a memo instructing Charlotte Police how to handle CAN charges in the future.
"Lawrence] draws into question the constitutionality of N.C.G.S. §14-177, Crime Against Nature. Clearly, the holding in Lawrence prohibits charging two consenting adults who are engaging in a crime against nature within a private residence with the above charge. However, the case did not directly address the solicitation of a crime against nature (SOLCAN).
For the time being and until a court tells us otherwise, we are of the following opinion: 1.) a SOLCAN charge wherein a subject offers to commit a crime against nature for money in either a private or public place is a valid charge; 2.) a SOLCAN charge wherein the subject offers to commit a crime against nature for no money in public or at an unspecified location is a valid charge; and 3.) a SOLCAN charge wherein the subject offers to commit a crime against nature for no money or consideration at a private place is no longer a valid charge.
We have spoken with the D.A.’s office who has agreed to continue to accept these charges; however, in the event a judge dismisses these cases based on a different interpretation, we may have to discontinue filing some or all SOLCAN charges.
Officers should still charge individuals with felony crime against nature if persons are observed engaging in anal or oral sex in a public place, such as a park or a restroom.

Interesting read on the statute.  It creates some weird potential scenarios.  Prostitution remains illegal in N.C.  But prostitution only includes engaging in sexual intercourse (for money), so offering to engage in oral sex for money has to be charged as SOLCAN.  The new public twist that the memo suggests has never been a part of the CAN statute, to read an "in public" clause into the statute would require some judicial gymnastics.  The CAN statute has also never required an exhange of money.  Other than the indecent exposure law, nothing prohibits public sex in N.C. So if the cops spot two couples in the park, one having vaginal intercourse and the other having anal intercourse, only the anal couple could be charged because CAN has never included male-female vaginal intercourse.

Still illegal in NC: incest between near relatives (siblings, half-siblings, parent-child, parent-stepchild, grandparent-grandchild), incest between aunt-nephew or uncle niece, fornication and adultery (although this is vulnerable to attack under Lawrence), bigamy, indecent exposure, and secret peeping (by male into a female's room).

It should be interesting to see our legislature tackle this problem.  Sex education from the General Assembly, this should be good.

Mon, July 7, 2003 | link

10 Commandments Judge
Roy Moore, the Chief Justice of the Alabama Supreme Court got elected after campaigning as the "Ten Commandments Judge."  As a trial judge, he had been sued at least twice over posting Ten Commandments plaques in his courtroom.  After his election, he paid for a Ten Commandments monument and had it installed in the court building after closing time.  He told none of the other judges about this plan.  Coral Ridge Ministries, an evangelical Christian media outreach group filmed the installation and has been using it as a fund-raising tool.  The group is also paying the Chief Justice Moore's legal bills.  Several of the arguments he raised in the appeal of the order to remove the monument border on the frivilous.  For example he argued since the First Amendment reads "Congress shall make no law respecting the establishment of religion" he was not making law when he placed the monument there.   That argument silly since it means that the President could erect a cross on the White House lawn as long as no "law" was involved.  It also has been soundly rejected many times before.
Moore has argued that the Ten Commandments show the moral foundation of law.  The commandments that appear on his monument are:












Actually that is 11 Commandments, but read the court's opinion for the background on that.  How accurate is it to cite the Ten Commandments as the moral foundation of our laws in the U.S.?  The first five are religious instructions only, were they to be a part of any law in the U.S. they would violate the first amendment.  Only killing, stealing, false witness and adultery (in N.C. anyway) are things that violate the law.  As far as I know coveting is legal.

The foundation of U.S. is the English Common law as it existed at the time we separated from England.  I've never heard anyone convincingly argue that law is based on the moral foundation of the Ten Commandments.  The common-law arose from court decisions that reflected the shared views of the judges and society's need for predictability in legal affairs.  It just does not make sense that law is somehow based on the Ten Commandments.

As an aside, C.S. Lewis wrote that our innate sense that things are morally abhorrent (stealing, killing, cheating) is one of the things that convinced him that God exists.  Essentially he was saying that if there were no God there would be no right or wrong.

It's hard to see Judge Moore's campaign as anything but demagoguery.  How could someone who is not a Christian see that monument as anything other than the court endorsing the Christian religion.  Religion doesn't need ogovernment endorsement to survive.  The Ten Commandments were around long before there even was an Alabama.

Read the court opinion here: http://www.ca11.uscourts.gov/opinions/ops/200216708.pdf

Mon, July 7, 2003 | link

Keeping up with the times
In a transcript I was reading recently a trial judge says "One of these days, I'm going to learn how to use a computer."  It's difficult for me to imagine being unable to use a computer these days.  While the judge is experienced and knowledgeable, it is hard to imagine an attorney being able to fully function without being minimally computer literate.  Would anyone go to a doctor who said "One of these days I'm going to learn about those painless laser scapels, but I've always been fond of this bone saw my daddy gave me."  How about a minister who said "One of these days I'm going to learn about that New Testament."
Mon, July 7, 2003 | link

Thursday, July 3, 2003

Enough already
There should be a statute of limitations for blaming the previous administration.  After two and a half years in office, it past time to keep blaming the economy on Bill Clinton.  President Bush  has been saying at recent fundraisers, "Two-and-a-half years ago, we inherited an economy in recession." We all know that the president can't just pull the right levers to make the economy improve.  If so, we'd never have a bad economy.
Thu, July 3, 2003 | link

Don't try this in court
After the judge gave a defendant just 7 months short of the 11 years 5 month maximum sentence the following exhange occurred:

Def: You should have just gave me the other damn seven—the other seven months is what you should have did, stinky mother fucker.

THE COURT: Mr. Benya—Mr. Murphy, you are summarily found in contempt of this court—

MURPHY: Just give me the other seven months.

THE COURT: You’re summarily found to be in contempt of this court. I sentence you to six months to be served consecutive to any other sentence imposed.

MURPHY: You should have just gave me the other seven months is what you should have done.

THE COURT: Mr. Murphy, I find you again in contempt of this court and you’re now summarily found in contempt for a second time and you’ll serve an additional six months consecutive to any sentence—

MURPHY: What about that? What about that? Serve that, mother fucker. . . .

THE COURT: Mr. Stone, just a minute. Mr. Murphy—


THE COURT: You just gave the finger to the court. That will be a third contempt of court and that’s six—

MURPHY: Add another one to it.

THE COURT: —six more months at the end of your sentence. Well, that’s a quick year and a half.

The outburst added 18 months to Murphy's sentence for drug and firearm offenses.  Murphy's attorney on appeal, public defender Stephen Gordon of Raleigh, successfully argued on appeal that the exchange was really just one contemptuous incident rather than three so Murphy got only an additional six months.

Sometimes it's best to actually exercise the right to remain silent.

Read all about it at: http://pacer.ca4.uscourts.gov/opinion.pdf/024005.P.pdf

Thu, July 3, 2003 | link

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