Saturday, August 30, 2003
Stomping at Camp Durant
Sat, August 30, 2003 | link
NPR had a funny interview
with the author of "Scouts Honor,"
a New York writer who had never gone camping until his son joined the Boy Scouts. The part he read about the "bear bag"
incident was hilarious. I'm going to buy the book.
The photo above is from Camp Durant in 1982 where I did a lot of growing up from 1980 through 1985. The red arrow
points to me. One of my favorite memories from there was the "stomp song" morning. WQDR was the popular station
we all listened to then. Every Friday morning a DJ named Gongaware played "In the Mood," which he called the "Stomp
Song." The idea was that listeners were supposed to stop what they were doing and stomp while the song played.
We lived in tents in the woods but the song would usually come on while we were getting ready to head to breakfast.
We would all stop what we were doing and dance around. One of the staff members wrote the DJ and got him to dedicate
the song to us. So one Friday we heard:
"Imagine deep in the woods at Camp Durant, guys rolling out of their bunks on Friday morning after all week with ankle-biting
kids. But it is Friday and the first beer of the weekend is only about 12 hours away ... " then the tune played.
We went crazy, especially when he interrupted the song to say "They're stomping at Camp Durant." There were about 40
guys dancing around in the woods in their underwear.
I think about that everytime I hear "In The Mood."
Friday, August 29, 2003
Know your rights before someone reads them to you
Fri, August 29, 2003 | link
I ran across this wallet-ready "bust card" put together by the ACLU
. It's not a get out of jail free card, but it's got good advice. Download a copy here
Wednesday, August 27, 2003
Put the wayback machine on high
Wed, August 27, 2003 | link
A friend of mine, Dean Rutledge, sent his son off to UNC-Chapel Hill this week. For both of us it brought
back memories of our first trip to UNC as students. He had a picture of his move-in day. Emily (our legal assistant)
and I agreed that his hair and clothing reminded us of Hyde
on That 70's Show.
While looking for pictures of my own UNC days, I found this curiosity:
The one on the right grew up to be a barely respectable Winston-Salem, N.C. lawyer. The one on the right,
Bobby Keene, is an Army helicopter pilot.
Tuesday, August 26, 2003
The French had at least one good idea
Tue, August 26, 2003 | link
Liberty consists in being able to do anything that does not
harm others: thus, the exercise of the natural rights of every man has no bounds other than those that ensure to the other
members of society the enjoyment of these same rights. These bounds may be determined only by Law.
Article 4, Declaration of the Rights of Man, adopted by France Aug. 26 1789.
From The Paper Chase.
Please do not smoke the phone book cover
Tue, August 26, 2003 | link
Don't bet the ranch ... yet
Tue, August 26, 2003 | link
While I wouldn't advise investing in an N.C. version of Nevada's Mustang Ranch
yet, prosecutors have some obstacles in charging people in some sex acts for hire and public sex cases. According to the AP
, attorneys for the Raleigh Police and the Wake County Sheriff have advised officers there to charge people they find
involved in public sex acts under the N.C. crimes against nature statute. The problem is most lawyers with a pulse agree
that a recent U.S. Supreme Court case (Lawrence v. Texas
) invalidated that law by holding that consensual sexual activity between adults cannot be outlawed. The other
problem is that the crime against nature law has never distinguished between private or public sex. It never outlawed
public sex, just certain sex acts wherever they occurred. It simply prohibits a "crime against nature" without further
definition. Court decisions have looked to the common law for the acts that are "crimes against nature": oral sex, anal
sex, beastiality etc.
Another problem for law enforcers is the fact that N.C. prostitution statute covers only sexual intercourse for hire:
term "prostitution" shall be construed to include the offering or receiving of the body for sexual intercourse for hire, and
shall also be construed to include the offering or receiving of the body for indiscriminate sexual intercourse without hire.
then when police caught people engaged in acts other than intercourse for commercial gain, they charged the parties with either
committing a crime against nature or soliciting a crime against nature. For example, the courts have held in 1983
that the prostitution statute did not cover masturbation for hire. The same rationale should apply to oral sex
or any other sex act (but intercourse) for hire. Police departments now face a dilemma: when they spot people engaged
in sexual acts in public they may not be able to find a violation of the law.
exposure requires willful exposure of private parts in a public place in the presence of persons of the
opposite sex. (obviously with same sex couples there is no violation, but it is unclear if the display of private
parts only to the person you are um ... engaged with would be enough. An obliging public sex partner could always
adopt the Sgt. Shultz defense, "I see nothing.")
against nature has never applied to only acts committed in public and it would be a stretch for courts to suddenly
read that requirement into the statute. The statute could be re-drafted by the legislature to prohibit sex acts in public
but it would take the kind of judicial creativity usually frowned upon to change the long-accepted interpretation.
a motel room for an immoral purpose (a misdemeanor) probably is questionable after Lawrence v. Kansas.
It obviously requires use of a room as well. The N.C. Court of Appeals ruled to "immoral purpose" was unconstitutionally vague
in 1978, but the statute was never repealed or amended.
or adultery requires only lewdly and lasciviously
associating, bedding or cohabiting together so that statute is probably vulernable to constitutional challenge.
None of these morals laws really covers the situation of sex acts other
than intercourse for hire or public sex activity. So for the time being, it appears that it is legal to hire someone
for "everything but intercourse" or sex activity in public as long as everthing remains covered.
The N.C. General Assembly (motto: "Hey you kids, cut that out!") will
probably have to take this issue head on. Luckily for them I already have the perfect solution. My proposed statute
has everything a bill needs to make it into law today, namely:
- A catchy acronym: Bipartisian Lawmakers
Outlawing Weird Moral Errors, the BLOWME Act.
- A cute name, "Floozy's Law" should do.
The actual text of the bill is irrelevant, after all you did not need
to actually read the USA PATRIOT Act to know that it was a good thing. I would love to hear this in court, "Mr. Defendant
you are charged with violating the BLOWME Act, how did you plead?" It could work its way into police jargon: "Unit 2202,
see the man corner of Peeples and 23rd St. about possible BLOWME violation." Or "Hey officer, what's the charge?" "BLOWME."
Interesting things I ran across while looking all this up:
- Best unintentional humor in N.C. General Statutes:
"Statute defining a nuisance as erection, establishment,
continuance, maintenance, use, ownership or leasing of any building or place for purpose of prostitution is not unconstitutionally vague ..."
- Biggest Huh: It is illegal
to use indecent or profane language in a loud and boisterous manner, in the hearing of two or more persons on any public road
or highway. This is illegal everywhere in N.C. except Pitt and Swain counties.
- Best use of "irrespective" and "nipple" in the same sentence: "a woman may breast feed in any public or private location where she
is otherwise authorized to be, irrespective of whether the nipple of the mother's breast is uncovered during or incidental
to the breast feeding. " (indecent exposure statute).
Friday, August 22, 2003
Fri, August 22, 2003 | link
Dust this for prints
If ever a case called for spatter analysis, this one did:
Ten Commandment tokenism
Fri, August 22, 2003 | link
Just what is accomplished with the push to post the Ten Commandments in as many places as possible? As I saw
the folks being dragged away from the monument in Alabama, I thought about how many more worthwhile things you could devote
your energy to than a surrounding a hunk of granite.
Christianity Today's weblog
points out that it mentioned in March 2000 that Commandment-mania was in danger of becoming a kind of tokenism. The
writer warned that excessive focus on a symbol rather than substance could cause the symbol to become an idol.
That day has come and has been here for a while. The Ten Commandments seems to come up often as some sort of religious
quick-fix for what ails us. To improve the climate in schools we suggest posting the Ten Commandments. To improve
the legal system we post the Commandments at the courthouse. People in Davidson County are rallying for the "In
God We Trust" motto at that courthouse. The sad thing is this trivializes the Ten Commandments and takes attention away
from efforts at real change.
If you think that the kind of focus on the Ten Commandments is a good thing, you'll love this
Wednesday, August 20, 2003
Wed, August 20, 2003 | link
It is wrong, but it ain't commerce
Wed, August 20, 2003 | link
A California woman drops off film to be developed and the technician spots a picture of the woman and her 10-year
old daughter with their genitals exposed. The technician calls the police, who get a warrant, search the home, seize
cameras and computers but find nothing else. The photo is not innocent, it depicts a minor involved in sexually explict
Now the woman is in the wrong, but does her possession of a single pornographic photo of herself and her daughter with
no evidence that she intended to do anything other than keep it to herself, have a connection with interstate commerce?
Does the fact that the film and camera were manufactured outside California create enough of a connection?
No, according to the 9th Circuit Court of Appeals in U.S. v. McCoy
Child porn is one of those radioactive issues. It is hard to have a rational debate because it provokes
such a strong reaction. No question that it is utterly wrong. The question in this case is not whether child porn
is wrong but whether a group (the U.S. Congress) that is allowed to regulate only interstate commerce can prohibit
the mere possession of a single "home grown" photo by calling it interstate commerce. If that is interstate commerce,
everything is. States are empowered to punish wrongful conduct and almost certainly could have prosecuted her rather
than the Feds. It will be interesting to see if the U.S. Supreme Court hears the case. The so-called conservative
wing of the court (Rehnquist, O'Connor, Kennedy, Scalia, and Thomas) narrowed the field of what could be considered interstate
commerce in the Lopez and Morrison cases. Lopez held that possession of a gun on school premises
was not interstate commerce while Morrison held that violence against women was not commerce. Will conservatives
hang together on principle or fracture when faced with child porn? In recent years the 9th Circuit has had far more
than its share of reversals in the Supreme Court.
Some of this doctrine is being used in a challenge to federal regulation of small amounts of pot possessed for medical
purposes under state medical pot use laws. Here's lots of information about that
My favorite quote from the dissent "it's the statute, amigo" and the reply in the main opinion, "it's the constitution,
Tuesday, August 19, 2003
Making a mint
Tue, August 19, 2003 | link
I just filed an appellate brief in a case I have been working on for some months now. My joy at having that irksome
task behind me is tempered by the knowledge that others are soon due. So as my thoughts turn to happy hour, I remembered
this clip from Walker Percy that a friend recently sent me. It comes from Signposts In A Strange Land, in 1975:
Not only should connoisseurs of Bourbon not read this article, neither should persons
preoccupied with the perils of alcoholism, cirrhosis, esophageal hemorrhage, cancer of the palate, and so forth--all real
dangers. I, too, deplore these afflications. But, as between these evils and the aesthetic of Bourbon drinking, that is, the
use of Bourbon to warm the heart, to reduce the anomie of the late twentieth century, to cut the cold phlegm of Wednesday
afternoons, I choose the aesthetic. What, after all, is the use of not having cancer, cirrhosis, and such, if a man comes
home from work every day at five-thirty to the exurbs of Montclair or Memphis and there is the grass growing and the little
family looking not quite at him but just past the side of his head, and there's Cronkite on the tube and the smell of pot
roast in the living room, and inside the house and outside in the pretty exurb has settled the noxious particles and the sadness
of the old dying Western world, and him thinking: 'Jesus, is this it? Listening to Cronkite and the grass growing?'
Percy also gives advice on the mixing of mint juleps:
"Cud'n Walker's Uncle Will's Favorite Mint Julep Receipt."
You need excellent Bourbon whiskey; rye or Scotch will not do. Put half
an inch of sugar in the bottom of the glass and merely dampen it with water. Next, very quickly--and here is the trick in
the procedure--cruch your ice, actually powder it, preferably with a wooden mallet, so quickly that it remains dry, and, slipping
two sprigs of fresh mint against the inside of the glass, cram the ice in right to the brim, packing it with your hand.
fill the glass, which apparently has no room left for anything else, with Bourbon, the older the better, and grate a bit of
nutmeg on the top. The glass will frost immediately. Then settle back in your chair for half an hour of cumulative bliss."
I won't try to compete with someone who knows Bourbon like Cud'n Percy, but here's my favorite mint julep recipe.
Get some fresh mint leaves. Mint plants are easy to grow so you should already have one in your back yard.
Plant one and it will take over lesser plants. Get a cup of water and a cup of sugar. Bring water and sugar to
a boil. Turn off the heat and put in a sizable handful of mint leaves. Leave them in until the mixture cools.
Strain the leaves out and squeeze them dry into the syrup. Put syrup in fridge overnight.
Get some metal mint julep glasses. Crush ice finely as you can (but powdering is not necessary). Put
1 or 2 tablespoons of the syrup over the ice and fill the remaining space with Bourbon. Repeat as needed until phlegm
Even in the South, mint juleps are not enjoyed nearly often enough.
Saturday, August 16, 2003
The odds aren't always even
Sat, August 16, 2003 | link
One of my continuous struggles in representing clients has been the conflict between the client's desire for predictability
and certainty versus my need to be honest that I can never provide a guarantee. I'm sure people who ask lawyers
questions get tired of hearing answers that begin like "Well that depends..." But probably two-thirds of the time the
best I can do for a client is to offer an educated guess about what is likely to happen based on my knowledge of the law and
past experience. The human elements of the system: juries and judges will always be unpredictable. Several years
ago a client rejected my advice to plead guilty in a criminal case, we tried it and he was acquitted. Was it wrong for
me to advise him to take the plea, or was he just lucky?
The question: "what are the odds?" often comes up. Odds are not directly applicable to the legal system.
I can say with certainty that if you use honest dice, the chace of rolling a six on a single roll is 1 in 6. But I can
never know the odds of winning a particular case. That's true even if I know that the state wins 3 out of 4 cases that
it tries. Just because the state wins 75% of the time that's not the same as a 1 in 4 chance of winning, because the
chances of a win in each case is not the same.
The only way I can think of to know the odds of a win in a trial would be to try the same case in front of different
juries many times and tally the wins and losses time. Even then a different jury makeup would change the chances
of a win each time.
The best metaphor I have been able to devise is from coaching, but I still find it lacking. A basketball coach
can drill his team on fundamentals and devise a strategy to win, but he can never guarantee a win in a particular game or
even a number of wins in a season. I think attorneys, especially litigators, are in the same shoes as the coach.
We can prepare and strategize but we can never be sure of the outcome. I think the coaching metaphor is flawed though
because a basketball game is a contest of skill while court cases are supposed to be a search for the truth. We instruct
juries that "truth is the highest aim of every legal contest." So a trial is a search for the truth not a contest over
I've heard that some lawyers claim that they have a perfect winning record over a period of years. I've fantasized
about being able to amass that kind of record. I could have a pretty lucrative practice if my skills were so good that
it was impossible for me to lose. If that were possible, it would mean that the legal system was a failure because the
cases would not be decided on the merits, but on which side had the better lawyer. It would be a pretty frightening
power to have -- the ability to control the outcome regardless of the truth.
Of course, rejecting the "contest theory" also gives me hope in the cases where I am facing a better lawyer, then
all I need is truth on my side.
Thursday, August 14, 2003
Cut that out
Thu, August 14, 2003 | link
Simulated "flagellation" became illegal
anywhere in N.C. that serves alcohol on July 20, 2003.
You will have to pry the monument from my cold dead hand
Thu, August 14, 2003 | link
Alabama Chief Justice Roy Moore said he will defy
the order to remove the 10 commandments from the Supreme Court Building. The federal judge who ordered the removal had
already suggested hefty fines against a financially strapped state, if no state official is willing to comply with the order.
If Judge Moore wants to continue his campaign of civil disobedience, why shouldn't the consequences fall to him? A poitical
scientist friend of mine pointed out years ago that civil disobedience without some personal sacrifice is meaningless.
For example, think about how effective Martin Luther King's "Letter from a Birmingham Jail"
would have been if was called "Letter from a Birmingham Holiday Inn." Dr. King pointed out that:
One who breaks an unjust law must do it openly, lovingly ... and with
a willingness to accept the penalty
If Moore wants to be a martyr for his cause, he shouldn't do it on the state's dime. If Moore has decided to disobey
what he considers an unjust law, he must be willing pay the price.
The Mobile Register
points out that the state hasn't got extra tax dollars sitting around to devote to the Justice's self-aggrandizement.
I always thought those letters were fake
Thu, August 14, 2003 | link
I grew up in a small Midwestern town and I was not
what you would call ďexperienced.Ē After I graduated from a New England menís
college, I landed my first real job at a struggling menís magazine. I had only
worked there a short time when one morning the receptionist buzzed me telling me that my 10 a.m. appointment was here. As she was shown into my office, she smiled at me invitingly. She confidently sat in the chair opposite my desk smoothed the dark gray businesslike jacket she wore over
a cream-colored blouse. She crossed her long shapely legs and my eyes followed
them down to the stylish, if slightly high-heeled, pumps she wore.
hinted to me that this would be no ordinary meeting, but I hadnít expected such a charge in the air.
All of a sudden she slid her briefcase onto my desk
and snapped it open. What she had in that briefcase changed my life forever. When I saw what she pulled out of that briefcase, I knew that after that day I was
going to be ďexperienced,Ē at bankruptcy anyway.
Wednesday, August 13, 2003
Cold case file
Wed, August 13, 2003 | link
O.J. Simpson has now spent 2868 days looking for the real killer.
Why I can't trust newspapers
Wed, August 13, 2003 | link
I can't remember when I did not start the day off reading the newspaper. I know it started when I found out that
the comics were in there every day, not just Sunday. Soon I found my way to the news and have been hooked ever since.
However one thing has always led me to doubt newspapers' credibility. The most serious caveat to newspaper credibility
is not liberal bias, inaccuracy or sensationalism. The most damning evidence of newspaper ineptitude is this: THESE
PEOPLE THINK THAT THE FAMILY CIRCUS IS FUNNY.
I am not the only one who does not see the humor in Billy's dotted-line travels or the warmth of Grandpa gazing down
from his cloud. This quote from the M(at)B comic
web site sums it up for me:
I've always been extremely angered by the comic strip Family Circus.
It is neither funny, nor insightful, nor charming. It sucks.
The author of this pretty good parody tells how it ruined his life:
After all my years as a cartoonist, working and studying to
master the form, it's depressing to think that The Family Circus is still my best selling product. ... I've recieved more
recognition for this than all of my other works combined. This sloppy little comic has cursed my entire career. I can almost
imagine the first line in my obituary. It is my Citizen Kane, if Citizen Kane was a piece of crap.
Apparently the badness of The Family Circus is such that it smites anyone who dares mock it.
Collaring some column inches
Wed, August 13, 2003 | link
One of my favorite columnists (probably the favorite since Mike Royko is dead and Russell Baker retired), Dennis Rogers
of the News & Observer
, mentioned me in his column
today. He used his new & improved version of an earlier post
that I e-mailed him about the Cubans who outfitted a truck to take them to Florida.
Two of my favorite Rogers passages have stuck with me over time. The first described a small store/bait tackle
shop between Knightdale and Raleigh on U.S. 64. I think it was officially named "Carolina Moon" but most people knew
it as "The Rock Store" because it was built of stone. It may be gone now. Rogers wrote
"... there's cold beer in the cooler and you can bring your dog inside.
A man can't ask for more."
Another time Rogers waxed eloquent about the Weber grill, a non-gas model. He said
"I am man, I own a Weber. You 'gas guys' should just go in with the ladies and
make potato salad."
I've had the basic Weber kettle for years and it is just beginning to get broken in. You're just not grilling if
you're not grabbing that big lid by the semi-broken handle and setting down over that bed of Kingsford coals. You're
not grilling if you are not watching that volcano-shaped pile of ash grow in the dish under the bottom vents. I know
gas is convenient and quick, but grilling, real grilling, is not supposed to be either convenient or quick.
Tuesday, August 12, 2003
Sheriff Taylor wouldn't have let this happen
Tue, August 12, 2003 | link
Every life lesson worth knowing about life was taught on "The Andy Griffith Show." Andy usually had the perfect answer
to every tricky situation. Barney Fife was always over the top, overzealous and on the verge of being run out of town.
I recall an episode where Andy left Barney in charge, Barney used the opportunity to crack down -- all of Mayberry was in
jail when Andy returned and smoothed things over.
I thought of this as I read about the Kaukab v. Harris
case at The Volokh Conspiracy
. Kaukab was born in the U.S. and is of Pakistani and South Asian ancestry. She is a practicing Muslim and wears
a hijab to cover her hair and neck in public. While traveling for VISTA
at Chicago's O'Hare Airport, she was hit with a pretty agressive search. A private security firm (Argenbright) and
the Illinois National Guard were running the screening station. Kaukab put her bag through the x-ray machine and went
through the metal detector without setting it off. After trying to get her bag she said she was surrounded and gone
over with the hand-held metal detector, twice. After a discussion following the second search, a staffer ran the detector
over her upper body, crotch and stuck it in her boots. Security staff patted her down and pulled the hook and straps
of her bra. More wanding of her head without an alert.
Next she was ordered to remove the hijab. (The picture is not Kaukab, it just shows what a hijab looks like)
Kaukab refused to remove her hijab in public and offerred take it off in private with only women present. That request was
initially denied, but she was taken to a private area, but a man insisted on observing the hijab removal while women stood
guard. Kaukab refused. Finally the staff relented and a female staffer (Ewing-Williams) searched Kaukab while
another watched. Even though Kaukab had now gone through the metal detector and been searched about 4 times the screeners
were just getting warmed up. Next:
opened Kaukabís sweater in the front, which exposed the camisole that Kaukab wore underneath her sweater. Ewing-Williams viewed
Kaukabís camisole and patted over it. Ewing-Williams then covered her hand with Kaukabís camisole and placed her hand inside
Kaukabís bra, patting down her breasts. She then patted the rest of Kaukabís upper body over the camisole. Following the upper
body search, Ewing-Williams patted the front, back and sides of Kaukabís thighs
and the front of her lower legs. She unzipped Kaukabís boots and felt around inside her boots over her socks. She then patted
the backs of Kaukabís legs, buttocks and crotch. Ewing-Williams unbuttoned and unzipped Kaukabís pants and viewed Kaukabís
underwear. She placed her hand inside Kaukabís pants, patting her over her underwear around her lower abdominal area and crotch.
Ewing-Williams zipped Kaukabís pants back up and ran her hands over Kaukabís entire crotch area again. She then pushed on
Kaukabís crotch. Ewing-Williams forced Kaukabís legs farther apart and said, ďspread your legs.Ē She then conducted a more
extensive search of Kaukabís crotch area.
Kaukab then asked if she could go, and the security team said she was free to leave. More detail is in the
The problem here is too many Barneys and no Andys. We become a nation of Barney Fifes. Barney couldn't
wait to reach for the bullet in his pocket and start frisking people. Sheriff Taylor was the voice of reason.
Andy would have let the lady take off her hajib in private and would have brought in Helen, Aunt Bea or Ellie for the search.
There would have been no undue attention paid to breasts or crotch. Barney and Andy would have waited outside.
These days the Barneys are running things.
Wherever you are hurry back Andy, Barney's making a mess of things.
Where it began
Tue, August 12, 2003 | link
211 years ago this week the U.S. Supreme Court issued its first published opinion, Georgia v. Brailsford
. The case involved procedural issues involving whether Georgia had a right to collect a debt originally owed to a British
citizen. After the Revolutionary War, Georgia passed a law mandating forfeiture to the state of property owned by British
Monday, August 11, 2003
Movie of the week
Mon, August 11, 2003 | link
Watch out, it's rated "Arrr"
Blame it on the Trojan
Mon, August 11, 2003 | link
Do you know everything that is on your hard drive? Potentially there is a picture of everything you ever looked
at on the internet in there somewhere. There could also be pictures of anything anyone who used your computer looked
at on the internet. There could be pictures that guys at the computer factory thought it would be funny to put on the
hard drive. And now apparently there can be pictures that a Trojan horse virus reached out and gathered.
A father charged with child porn offenses was acquitted using the defense that a virus had infected his computer and
put the images there, according to the New York Times
. Based on tip (the police would not reveal their source) local police in England searched Julian Green's home and found
172 child porn images on his computer hard drive. No other porn was discovered in the residence. The raid came two
weeks after Green won custody of his children in court.
Before my e-mail address changed, I got lots of porn-related spam. A lot of the e-mails had html content so that
as soon as I opened (or previewed) the e-mail I was looking at some really explicit stuff even without clicking a link to
a website. I guess those photos (that I never asked to see) could be lurking on my hard drive somewhere.
Wiping software might be wise, but if a computer was seized or searched and there was evidence of regular wiping, that
could lay the foundation for some kind of obstruction of justice prosecution. Scary stuff, if you like privacy.
Mon, August 11, 2003 | link
Many stories about federal sentencing don't really explain the difference between mandatory minimum senteces for crimes
and the Federal Sentencing Guidelines. Mandatory minimums and the Guidelines are different things. Both are fair
targets for criticism, but there is a greater consensus in opposition to mandatory minimums than to the Federal Sentencing
Guidlines. Supreme Court Justice Anthony Kennedy told an ABA convention
last week that mandatory minimum sentencing laws should be scrapped. Kennedy used this example in testimony to Congress
"You'll have a young man, and he shouldn't be doing this, but he's
raising marijuana in the woods. That makes him a `distributor.' And he's got his dad's hunting rifle in the car, he forgot
about it and he wants to do target practice, that makes him `armed.' He's looking at 15 years," the justice said. "An 18-year-old
doesn't know how long 15 years is. And it's not so much the sentencing guidelines, it's the mandatory minimums. That's the
Reported in Las Vegas Review Journal editorial.
That is the result of a statute that requires a minimum sentence (usually 5, 10, 15, 20 years,
or in come cases life), regardless of the circumstances upon conviction. Once the court determines that a mandatory
minimum applies that is the sentence even if the guideline sentence would not be as long. In my experience mandatory
minimums frequenly impose a longer sentence than the guidelines would have if there was no minimum.
The Sentencing Guidelines on the other hand, usually result in a range based on the offense level
(1 through 43) and criminal history category (1 through 6). For example, if someone attempted to bribe a public official
with less than $2000 and had no criminal record, he would be at offense level 10 and criminal history category six.
The judge could sentence him to from 6 to 12 months in prison. There is less consensus that the guidelines are overly
harsh, but in some areas they are pretty draconian. My personal beefs with the guidelines is that they are overly
complicated and require that the defendants sentence be lengthened based on information that was not proved to a jury beyond
a reasonable doubt.
Saturday, August 9, 2003
Sat, August 9, 2003 | link
I'll take one pizza, hold the VD.
Friday, August 8, 2003
Does he want it fair or unfair in his favor?
Fri, August 8, 2003 | link
Two papers have taken on the Justice Department's reporting on federal judges' departures from sentencing guidelines.
Mr. Ashcroft's memo, reported first in The Wall Street Journal, indicates that
sentences that are lower than guideline limits should be few and only at the prosecutor's recommendation. But many, if not
all, will be appealed.
Baltimore Sun editorial
The core of impartial, adversary system of justice requires that both the prosecution and the defense be able to
make sentencing arguments to the judge. Why should a defendant be barred from arguing that the circumstances of the
crime require a different type of punishment? I've had several cases where the U.S. Attorney has asked the judge to
depart upward. If there are some cases where more than the guideline sentence is fair, then there must be cases where
the guideline sentence is too harsh. It is reasonable to argue that departures should be unusual, after all one of the
reasons for the guidelines in the first place was to reduce disparity in sentencing.
Ashcroft has a right to gather more information about sentencing trends in federal
criminal cases, but his motives for doing so are suspect. Bureaucratic second-guessing of judges and micromanaging sentences
out of Washington are a formula for undermining justice in the federal courts.
Fort Wayne Journal Gazette editorial
There is no shortage of statistics and other information about federal sentencing. The federal government is obsessive
about compiling statistics on itself, and the Federal Sentencing Commission is no exception.
Professor Eric Muller points out that the Justice Department requires the local U.S. Attorney offices to get permission to appeal. I always had the impression that the permission to appeal was not freely granted because of the need to balance the
workload between prosecuting new cases and appealing sentences. The Sun editorial notes that half of the 19,000 departures
for 2000 were initiated by a prosecution request. If every non-prosecution departure was appealed that would mean about
8500 additional appeals each year, devoted only to length of sentence. That may not be a wise use of Justice Department
Maybe when you having trouble solving problems that exist, it makes sense to invent a problem and then pretend to solve
Thursday, August 7, 2003
Boring the Bard
Thu, August 7, 2003 | link
Responding to interrogatories propounded by Shakespeare.
The worst thing is that the responses are exactly the kind of writing we usually do. Except for the humor.
Wednesday, August 6, 2003
Wed, August 6, 2003 | link
I always thought this would make a good vanity plate for a lawyer.
This would probably get you pulled over a lot.
I'm putting that in my report!
Wed, August 6, 2003 | link
Attorney General John Ashcroft is telling federal prosecutors to report judges who sentence defendants to less than the
federal sentencing guidelines call for, according to UPI
. Since federal judges have lifetime appointments, what is the effect of a report?
A new law known as "The Feeney Amendment" requires a report to Congress on federal judges who depart from the guidelines.
This sounds more like a publicity stunt than policy. Federal sentencings are an open book. Sentencing happen
in open court and departures are on the record. The Federal Sentencing Commission
has extensive studies of federal sentencing available to Congress and anyone else who is interested. The government
has the right to appeal sentences that depart from the guidelines, so there is an avenue to correct any errors. If there
is a particular case where a sentence was too lenient, make your case on appeal. A broad-brush attack on soft-on-crime
judges is just political posturing.
The landmark case on departures from the sentencing guidelines is Koon v. United States
, in which the sentencing judge departed below the guidelines in sentencing officers convicted in the Rodney King beating.
Is that thing still there?
Wed, August 6, 2003 | link
Alabama Chief Justice Roy Moore has until Aug. 20, 2003 to move the Ten Commandments monument from the public areas Alabama
Supreme Court building. Alabama Federal District Judge Myron Thompson initially ordered the removal. The
removal order was stayed pending appeal to the 11th Circuit Court of Appeals. The appellate court affirmed the order,
which I already blogged about
. Judge Moore did not request a stay of the order for removal of the statue pending an appeal to the U.S. Supreme Court.
Judge Thompson's order
requires that the monument be removed no later than Aug. 20, 2003. He threatens fines of $5,000 for each day the monument
is not removed and doubling the fine each week until Alabama complies.
Since the fines would be levied against Judge Moore in his official capacity, Alabama taxpayers will foot the bill for
Rants, raves result in retrial
Wed, August 6, 2003 | link
A man tried and convicted in a shooting will get a new trial because the judge's comments were so improper and disparaging
that he was denied a fair trial, according to the N.C. Court of Appeals
. During the trial Judge Evelyn Hill interrupted the defense attorney's questioning to say:
We've established that to the point that if you want to go there one more time
you'll probably see 13 collective people throwing up. We have established that two went to the front door. Now what
we want to know is what happened next. Okay
At another point she said (after the defense attorney got the witness to admit smoking marijuana outside a residence):
He said he was just standing watch over his sister's house as any good male
would. Not in relation to any nefarious dealings. So you need to phrase your question based on the testimony
No mention about whether "any good male" would also fire up a blunt while on guard duty. Later the judge
berated the defense attorney for asking a question about a piece of evidence that was not admissible:
Then you deliberately went and asked a question using the information from
that, which is not only improper, unethical, but also in flagrant violation of what the Court ruled. I'm at my wit's end.
The appellate court did toss the trial judge a bone:
We feel certain the learned trial judge did not intend to prejudice the
defense or in any manner belittle defense counsel; however, ďwhen these inadvertences occur, they must be corrected, as they
could have conveyed to the jury the impression of judicial leaning.
Calling the comments "inadvertent" is like saying Saddam Hussein is "out of the office for a few days."
In other Judge Hill news, the State Judicial Standards Division has recommended that she be censured for calling
an attorney insensitive heartless and incompetent and reaching out to touch a deputy's genitals, according to the N&O. Maybe you have to actually touch genitalia before the commission recommends removal from the bench.
Here's the briefs: Defense and State.
The check will be in the mail ... eventually.
Wed, August 6, 2003 | link
Money, the mother's milk of government, is in short supply for the N.C. Judiciary
. Usually it is criminal defendants who are asking the courts for "time to comply" with their court costs and fines.
The courts have have some compliance problems of their own.
The courts are unable to pay a $1.7 million phone bill. Things are even worse for private attorneys who (like me)
represent indigent criminal defendants. At the beginning of the fiscal year (July 2003), the N.C. Office of Indigent
Defense Services, still owed
attorneys and experts $8.7 million for work already done. That means that the office must use money appropriated to
pay of this year's criminal defense work to pay for work done the year before. The IDS office also figures that what
was appropriated this year will not cover this year's costs. I haven't had an economics class since college, but this
sounds like a train wreck in the making.
Part of the problem is the way that indigent criminal defense is provided in this state. There are 11 Public Defender
Offices in North Carolina (covering Pitt, Carteret, Cumberland, Durham, Orange, Chatham, Scotland, Hoke, Robeson, Guilford,
Forsyth, Mecklenburg, Gaston and Buncombe counties). Cases in the rest of the state are handled by attorneys in private
practice who are paid $65 per hour. The great majority of people charged with criminal offenses cannot afford
a lawyer, so each new case initiated in a non-public defender county will cost the state some money. Every defendant
who could potentially be imprisoned is constitutionally entitled to a lawyer, so the court must appoint a lawyer even though
the Indigent Defense Service lacks the money to pay. The IDS solution so far has been to simply pay what it can until
the money runs out.
In districts where there are public defender offices the situation is different, each office has a budget that covers
salaries and expenses. Private attorneys are appointed only if the PD's office has a conflict.
I hate to be pessimistic (actually untrue, I am by nature pessimistic), but it is hard to see what the solution will
be until there is a crisis. The legislature scores no political points by adequately funding criminal defense.
As long as attorneys continue to show up and represent their clients little will change. At some point I wonder if private
attorneys, who still make up the bulk of the system, will get fed up with delayed payment and stop taking court-appointed
cases. I have worked on an federal appeal for almost three years, when I asked the court for an interim fee, I
got a form letter rejection.
Already in Pasquotank and Camden counties there are no attorneys who will take court-appointed cases. The
IDS office is hoping to recruit an attorney to move there to handle the cases. If no attorneys will do court-appointed
work in the non-PD districts, the jails will fill up quickly and then there will be a crisis the will require action.
A statewide Public Defender system might be the only answer. If nothing else, it would bring predictability to the system.
If after reading this you are still interested in court-finance issues read an article
by Prof. Rhoda Billings and former bank exec John Medlin about court finance.
Saturday, August 2, 2003
Crazy like a Foxx
Sat, August 2, 2003 | link
According to the military
, Saddam may be disguising himself as cantankerous junkman Fred Sanford.
Friday, August 1, 2003
Pulling the plug
Fri, August 1, 2003 | link
Legal blogger Crimen Falsi
is signing off. He works for the federal government, which has already shut down a Department of Justice blogger
. Apparently there are fears that blogged comments could be used against a particular blogger in court. Sounds
pretty far fetched to me.
This sounds paranoid, but the government always is afraid of things it doesn't regulate orcontrol.
The politics of beer
Fri, August 1, 2003 | link
Pop the Cap
is a group pushing the idea of ending North Carolina's 6% alcohol by volume limit on beer (which the law calls "malt beverages").
Lots of craft and mircrobrews are kept out of North Carolina because they have more than 6% alcohol. I once home-brewed
some barley wine that probably was about 12%, about the same as wine. Sounds like a worthy cause to me in state where
wine and liquor are already available.
Red Oak Brewery
recently persuaded the legislature to raise the limit
of barrels of beer that can be sold without using a distributor from 10,000 to 25,000. The main opponent was Miller
Brewing of Eden, which probably spills more than 10,000 barrels a day.
Several years ago the courts struck down a federal law that prohibited beer labels from disclosing the alcohol content
on first amendment grounds. The government argued that the ban kept the brewers from competing in "strength wars."
The court held that it was unconstitutional to prohibit truthful information from appearing on the label.