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Friday, October 31, 2003
In the jailhouse now
I have been wondering why the trial judge in the Meg Scott Phipps trial ordered that she be held in jail until sentencing
on Nov. 12, 2003. Under the N.C. Structured Sentencing Law a person with no criminal record usually would not expect
to serve active prison or jail time for property crimes. If Phipps is not a flight risk, why order her held pending
sentencing unless she is really likely to get active time? Also why not sentence her immediately after conviction which
is the general practice in state (but not federal) court? My speculation:
- The trial judge was offended by Phipps refusal to acknowledge guilt in the face of what he saw as overwhelming evidence.
If he sentenced her immediately to even a "split sentence" (some jail followed by probation) an appeal would delay that sentence
before she would have to face incarceration. Appeals suspend all probationary sentences (including split sentences).
- The defense may see an advantage to delaying the sentencing and not making too much noise about Phipps being held in custody.
The time until Nov. 12 gives the judge a cooling off period. Also the sentence may not be as onerous once the judge
knows that she has spent time off the street.
- Even if Phipps did not want to await sentencing in jail, there is no opportunity for her to hold a news conference where
she continues to deny any involvement. At sentencing a defendant wants mercy, not justice. However it is a lawyer's
nightmare to ask for mercy but deny guilt.
- The trial judge felt that the public needs to see Phipps spending time in the jail to have faith that the criminal justice
system works.
Enough desk chair quarterbacking for today. The N&O has the transcript of the judge's remarks and some thoughts Phipps' dilemma: how to show contrition (which the judge will want to see) but preserve her case for appeal.
Fri, October 31, 2003 | link
Thursday, October 30, 2003
Talk about wrong
Early scientists who discovered radiation had a belief that the force somehow had to be beneficial, according to Bill
Bryson, in " A Short History of Nearly Everything." Toothpaste and laxative makers used radioactive thorium as an ingredient. A spa in the Finger Lakes region
advertised "radioactive mineral springs" in the 1920's. Radioactivity was not banned in consumer products until 1938. Pierre Curie showed signs of radiation sickness, but died after being run over by a carriage. Marie Curie died
of leukemia in 1934. Even today Curie's papers from the 1890's are too radiactive to handle, they are kept in lead-lined
boxes and readers need protective clothing to read them.
Thu, October 30, 2003 | link
Blinding me with science
A few notables from a creation science fair:
- Cassidy Turnbull (grade 5) presented her uncle, Steve. She also showed photographs of monkeys and invited fairgoers to
note the differences between her uncle and the monkeys. She tried to feed her uncle bananas, but he declined to eat them.
Cassidy has conclusively shown that her uncle is no monkey
- Patricia Lewis (grade 8) did an experiment to see if life can evolve from non-life. Patricia placed all the non-living
ingredients of life - carbon (a charcoal briquet), purified water, and assorted minerals (a multi-vitamin) - into a sealed
glass jar. The jar was left undisturbed, being exposed only to sunlight, for three weeks. (Patricia also prayed to God not
to do anything miraculous during the course of the experiment, so as not to disqualify the findings.) No life evolved. This
shows that life cannot come from non-life through natural processes.
-
Jason Spinter's (grade 12) project was to show the feasibility of Noah's Ark using a Rodentia research model
(made of a mixture of hamsters and gerbils) as a representative of diluvian life forms. The Rodentia were placed in a cage
with dimensions proportional to a section of the Ark. The number of Rodentia used (58) was calculated using available Creation
Science research and was based on the median animal size and their volumetric distribution in the Ark. The cage was also fitted
with wooden dowls inserted at regular intervals through the cage walls, forming platforms which provided support for the Rodentia.
Although there was little room left in the cage, all Rodentia were able to move just enough to ward off muscle atrophy. Food
pellets and water were delivered to sub-surface Rodentia via plastic drinking straws inserted into the Rodentia-mass, which
also served to allow internal air flow. Once a day, the cage was sprayed with water to cleanse any built-up waste. Additionally,
the cage was suspended on bungie cords to simulate the rocking motion of a ship. The study lasted 30 days and 30 nights, with
all Rodentia surviving at least long enough afterwards to allow for reproduction. These findings strongly suggest that Noah's
Ark could hold and support representatives of all antediluvian animal kinds for the duration of the Flood and subsequent repopulation
of the Earth.
And oh there is more here.
Thu, October 30, 2003 | link
Wednesday, October 29, 2003
Turf wars over nominee
Sen. Paul Sarbanes, a Democrat from Maryland wants the one of the three traditional Maryland seats on the Fourth Circuit
Court of Appeals to go to a Maryland native. Sen. John Warner told him in essence "too bad you lost, now get over it."
NPR captured the exchange. President Bush, named a Virginia lawyer, Claude Allen to fill the vacancy. Allen has practiced law for seven
years and is now deputy secretary of the Department of Health and Human Services. The Baltimore Sun has criticized Allen for lacking Maryland residency and for lacking the American Bar Association guideline of 12 years experience
before taking to the federal appellate bench. Allen previously worked for Jesse Helms. Putting Allen's credentials aside, it seems strange to me to argue that Maryland needs "representation" on the Fourth
Circuit. After all we are talking about a federal court, not congress. Is Sarbanes upset because the special perspective
that Marylanders have about the law will be diminished on the court? I can see where it would be desireable to have
members from all states within the circuit, but I'm not sure that it should be an overriding concern that justifies drawing
a line in the sand.
Tuesday, October 28, 2003
Lower the boom gently
I have some not-so-grudging respect for Nathaniel Heatwold, the college student who smuggled razor blades and other items
aboard jetliners, e-mailed Homeland Security about it and waited the five weeks or so it took them to respond. Government
mouthpieces have derided him as "foolish" and needlessly endangering others. An editorial in the Oregon Daily Emerald questioned whether his act was a "legitimate act of civil disobedience." Can civil disobedience be legitimate? If so, who decides on legitimacy? No government can condone civil
disobedience by its own citizens against its own laws. Civil disobedience is the deliberate flouting of the law to advance
a cause. Only individuals can decide whether the actions are legitimate, because that is a matter of individual conscience
overriding a legal obligation. People who aided fugitive slaves were practicing a form of civil disobedience, had I
been practicing law then I would have had an obligation not to assist clients in an ongoing violation of the law. As
a human I would have had a moral obligation to help.
Earth First! and ELF have engaged in more destructive and controversial forms of civil disobedience: spiking trees, vandalism
and arson to advance their environmentalist agenda. The Alabama 10 commandments judge was practicing civil disobedience
when he refused to remove his monument. I can respect what Heatwold was trying to acheive, I think Earth First! is frequently
misguided, ELF are criminals and the 10 commandments judge is a demagogue, but those are just my opinions. There is
no body that can declare some acts of civil disobedience legitimate.
Civil disobedience has to involve violating the law. Even the most ardent pacifist would get nowhere practicing
civil obedience. Violating the law must have consequences. Oliver Wendell Holmes wrote that the law prescribes punishments
for certain acts in the hope discouraging people from doing those things, but when someone does them anyway, punishment
is the only option if the law is to have any credibility.
I don't think Heatwold should serve any prison time, on balance his actions probably did some good and the risk to others
was miniscule.
Wishing I was there
A friend of mine snapped this photo last weekend while camping and fishing at Bear Island. I had to miss the trip this time. Every beach should be like this.
Thursday, October 23, 2003
From The Onion
Limbaugh Says Drug Addiction A Remnant Of
Clinton Administration
WEST PALM
BEACH, FL—Frankly discussing his addiction to painkillers, conservative talk-show host Rush Limbaugh told his radio audience
Monday that his abuse of OxyContin was a "remnant of the anything-goes ideology of the Clinton Administration." "Friends,
all I can say is 'I told you so,'" said Limbaugh, from an undisclosed drug-treatment facility. "Were it not for Bill Clinton's
loose policies on drug offenders and his rampant immorality, I would not have found myself in this predicament." Limbaugh
added that he's staying at a rehab center created by the tax-and-spend liberals.
From The Onion
I said "sue me", not "sushi"
The big firm guys at Paul, Weiss, Rifkind, Wharton & Garrison don't have much of a sense of humor about the sushi memo (prepared by a paralegal for a lawyer who complained that her sushi
wasn't fresh). They are refusing to answer questions about it and one lawyer banged the phone down, according to the
New York Times. This is the kind of stuff that makes people hate lawyers.
The firm has a Tokyo office, maybe they could have gotten something really fresh and FedEx'd it.
By the way, I will gladly send a memo about the best barbecue, donut and coffee places within a 50-mile radius of my
office in Winston-Salem to anyone with a spare $425.
Thu, October 23, 2003 | link
There goes the judge
Judge Janice Brown of the California Supreme Court gave some strange answers to senators at her confirmation hearing
for a spot on the D.C. Circuit Court of Appeals. During what should have been friendly questioning from GOP Senator
Arlen Spector, she seemed to say that a state constitution cannot provide greater privacy protections for for citizens than
the federal constititution. This position seems indefensibly illogical. A state constitution cannot abridge freedoms
guaranteed by the federal constitution, so if it can't provide additional freedom, what is the point of having one.
It has always seemed to me that the U.S. Constitution provided only the irreducible level of liberty, leaving states free
to impose further limits on the government activity.
In an answer to another Sen. Spector question she said she had not looked into the issue of whether the Supremacy Clause
of the U.S. Constitution would prevent a state from enforcing a law that violated Equal Protection. How much research
does she need to do? Look up the definition of "supremacy?" Outside of some wacko Freemen Militia types, who believes
that a state may enforce a law that infringes on federal constitutional rights?
Brown's critics are targeting her conservatism as a reason to block the nomination, but to me her answers (or non-answers)
to these softball questions are troubling.
Wednesday, October 22, 2003
"I'll just have what the kid is having"
I'm usually one to mind my own business but this quote got my attention:
The mother had been drinking in the bar with her husband and child for several
hours before the incident.
If it is a good idea to refrain from drinking until the mother is no longer breastfeeding, can it be a good idea to drink
while breastfeeding? Maybe the child wasn't complaining.
Wed, October 22, 2003 | link
Tuesday, October 21, 2003
So sue me
The great dirty secret of the corporate world is that whatever time they don't spend whining about frivolous lawsuits
filed by consumers is devoted to suing each other over trivial things. Every time you hear statistics about the
numbers of lawsuits filed or the percentage increase over the previous year, remember that most civil cases are corporations
suing each other. Some examples of corporate litigiousness:
Thursday, October 16, 2003
Gates 0, Mechanical bull 1
According to NPR Dallas is getting a Gilleys. I went to the old Gilley's outside Houston in 1986 or so. Our fraternity, Alpha Phi Omega, was having a convention
in Houston. Naturally most of the UNC contingent wore cowboy hats. I got mine at Roses, before we left North Carolina.
Gilleys was cavernous, the biggest bar I have ever been in. I tried out the mechanical bull. The operator was
keeping the rides tame, but I suppose impressed by the looks of my Roses cowboy hat combined with sneakers, he was moved to
say, "You guys look like real cowboys, take another ride." The second ride for me lasted about a nanosecond, I saw him
throw the switch, next thing I knew I was on the mat.
Thu, October 16, 2003 | link
Monday, October 13, 2003
Crouching tiger, hidden "doctor"
Important tip for burglars: Make sure your targets aren't martial arts experts. An acupuncturist (known as the "doctor") in Italy went medieval on four burglars who broke into his business,
killing two and sending a third to a hospital with a punctured lung.
Mon, October 13, 2003 | link
Law Loyalty and Treason
Eric Muller's blogs on the Carolina Law Review symposium are worth reading, especially if you are not a lawyer, but just like to to speak your
mind every so often.
Rushing to judgment
If a conservative is a liberal who has been mugged, a liberal is a GOP doctor whose
son got caught with pot. It is ironic hear a hard-line law and order type starting talking about the Fourth Amendment
and illegal searches.
It seems odd to hear radio loudmouth Rush Limbaugh talk about addiction and rehabilitation when he revealed that he has been addicted to
prescription painkillers. Previous Limbaugh statements suggested that the best treatment was prison:
"And so if people are violating the law by doing drugs, they ought to be accused
and they ought to be convicted and they ought to be sent up"
When talking about the disparity in conviction and imprisonment rates between whites and blacks
Limbaugh told People magazine:
"too many whites are getting away with drug use. The answer is to . . . find the
ones who are getting away with it, convict them and send them up the river."
Apparently Limbaugh has put his
canoe in the river, but he plans on pulling out at a rehab center. Possession of a controlled substance without a prescription
is a violation of a federal law, 21 U.S.C. Sec. 844. In my experience few "personal use" drug possession cases are prosecuted
federally. Even if Limbaugh were prosecuted federally, he would be unlikely to get an active prison sentence.
The maximum term of imprisonment is one year. If I had a possession only (meaning no sales to others) client with no
record, I wouldn't expect prison or jail time in the ordinary case.
I hope Limbaugh is sucessful
at battling his addiction, but he has made a lucrative career out of demonizing people in the same boat he now finds himself
paddling.
Comment
Mon, October 13, 2003 | link
Friday, October 10, 2003
DNA delay
DA: No charges will be brought until the lab results come in in, according to a story in the Winston-Salem Journal about an alleged sexual assault of a high-school student. In keeping with my theme of media skepticism from yesterday,
I read this with a critical eye.
- The headline (which the reporter did not write):"DA must wait for lab before filing charges in assault case"
Wrong. The DA has decided to wait for lab results before filing charges. According to the story, a 15-year
old girl told the sheriff's department that four young men sexually assaulted her after driving her to a house, where they
stripped her, held her down fondled her and tried to have sex with her. Assuming the girl can identify the young men,
that is a pretty solid case without DNA. To file charges all the DA has to do is convince a magistrate that probable
cause exists. Probable cause is a pretty low standard. An ID by an alleged victim would certainly qualify.
- Quote from DA: "We're waiting on the SBI, like we do in a lot of cases," followed by how the SBI is "mired
in a backlog of evidence, which causes prosecutors such as (Tom) Keith to wait months for evidence to be returned."
This is boilerplate from the Conference of District Attorneys. The DAs want the lab to speed things up. Fine,
a laudable goal. The DA doesn't wait for lab results before giving the OK for drug arrests. The DA does not have
to wait for the lab in sex assault cases either. According the the story, the young men tried to have sex with
the girl, this may or may not have left DNA evidence.
I wish the reporter had pushed a little harder. The story could have been more interesting. Questions like:
- Since you are waiting for lab confirmation does that mean you have doubts about the prosecuting witness's credibility?
For example if the witness had said that she was kidnapped by five men who took her to a remote location, stole $200 and abandoned
her, there probably would be no DNA evidence to collect, but surely charges would be brought based on the witness testimony.
- Are you allowing four known men who allegedly kidnapped a young girl and sexually assaulted her to remain
at large to advance a political agenda? If the witness identified the attackers (according to the story all
were students or former students at the same high school), that is a strong case even without DNA.
- If charges are brought, the fact that the four remained at large for months will undercut the argument that the
four should be jailed with high bonds pending trial based on the danger to the community? The DA will usually
argue for a high bond based on dangerousness in sex assault cases, but can you seriously argue that in a case where despite
the witness identification you waited months for lab confirmation before making an arrest?
My gut tells me the story is not a backed up lab. Rape cases were successfully prosecuted for a long time before
DNA testing was possible. The real story may be that there is some reason to doubt the witness's story, or for tactical
reasons the DA has decided to delay an arrest. But allusions to the SBI lab backup smells like a ruse to get the legislature
to expand the SBI lab. Maybe expanding the SBI lab would be a good thing, but it is misleading to suggest that this
case hinges on DNA evidence.
Comment
Fri, October 10, 2003 | link
Thursday, October 9, 2003
Spying game
A Washington journalist friend of mine had this to say about the unmasking of CIA undercover operative Valerie Plame:
This whole thing simply stinks worse than a hog farm, if that's possible. Remarkably,
now Bush says we may never find out the identity of the leakers (http://www.washingtonpost.com/wp-dyn/articles/A56989-2003Oct7.html), despite his so-called desire to do so. And he blames the press for this! George,
it was in your White House. If Rove, et al., didn't know about it or do it themselves, then what kind of ship are you running?
Your WH leaked the name of a CIA operative (destroying her career) and now you're blaming the press?
Good point. How can an administration that vows to bring in Saddam and Bin Laden admit defeat in finding
a senior administration official before it even really tries? The leaker made about eight calls before getting Robert
Novak to bite. Maybe Novak should see if he can move a little higher on the speed dial.
At first I wondered of Plames work with the CIA was practically an open secret in D.C. After all she was
married to an ambassador. According to the Washington Post, she had a pretty elaborate cover. I wonder if the leaker's identity is really an open secret in some Washington circles. In my small-city
lawyer experience there is the real story and public story. For example, a few years ago a local district judge was
rumored to be campaigning hard for an appointment to fill a Superior Court vacancy. It was rumored for weeks that the
judge was a shoo-in. When the appointment was made public, the local paper lead with something like "local judge surprised
to get appointment." That seemed implausible to me. Even if the judge had not been lobbying for the opening, he
must have been tuned in to the rumor mill. Of course I had no hard information about what was going on, but I've never
looked at stories in the paper the same way. If I hadn't been something of an insider, I would have taken the story
at face value and been totally mislead.
I'll bet lots of Washington folks have a good idea who the leaker is. What we're getting is the public
consumption version of events.
Thu, October 9, 2003 | link
Just how patriotic are you?
Take the patriotism quiz from NPR. The advanced quizzes are tough. The one about quotes was a killer. I was far below average. Ouch.
Thu, October 9, 2003 | link
Monday, October 6, 2003
Start-up overload
A computer virus made my old computer give up the ghost. I was worried it was too risky to rely on it, since I
am virtually paralyzed without it. I got a brand-new Dell. As I was finishing the set-up and installing new programs,
it suddenly stopped letting me install anything else. The computer just would respond to set-up requests. I got
on the phone to tech support and we discovered that so many programs had installed themselves and were running in the background
that they were sucking up all the computer resources. Nearly every program I had installed had a program that would
run at every Windows start. These things were not visible in the Start-up folder where I could get rid of them.
I had to use the "msconfig" routine to get rid of them.
That seems like trespassing. I'd like to choose whether or not to devote computer resources to having something
constantly run in the background. If something needs to run even when the program isn't I think the software company
should let you know what that is.
Tomato - Tomahto
There is lots of discussion about whether a special prosecutor or independent counsel should be appointed to investigate
whether the Bush administration leaked the name of CIA agent. "Special prosecutors" and "independent counsels" are not
the same thing. A "special prosecutor" is an outside attorney hired by the attorney general to investigate or bring
charges. The attorney general or president can fire a special prosecutor. That's what happened to Watergate special
prosecutor Archibald Cox. "Independent counsels" were attorneys appointed by a three-judge panel upon a request by the
attorney general. Once appointed, the independent counsel is answerable only to to judges. Kenneth Starr was an
independent counsel.
The independent counsel statute was allowed to expire and there are no provisions for appointing independent counsels.
Ripped from the classifieds
Kinda gives a new meaning to the term "woody." I think I saw Norm Abrams build one of these on "The New Yankee
Workshop."
This is running in the Winston-Salem Journal.
(since posting this I learned that "crotch mahogany" is a type of wood)
Mon, October 6, 2003 | link
Saturday, October 4, 2003
It's not easy being green
I can find out what search engine term someone used to find my website. A lot of the things searched are what you
would expect. Lots of queries about divorce and bankruptcy. But lately there have been lots of searchers looking
for information about what to do when a neighbor's tree branch branch crosses over the property line or who is responsible
when a neighbor's tree falls on your property. This is probably the # 3 thing searched after divorce and bankruptcy.
I had no idea the issue was so widespread, maybe Isabelle had something to do with this. The queries predated Isabelle
though. Maybe I should consider branching out into this area of the law. Anyway if all you want is an answer to
a tree issue, try here, here, or here.
Friday, October 3, 2003
Scouting for all?
I recently finished "Scout's Honor" by Peter Applebome, who calls himself a "committed indoorsman" before his son joined
a Scout troop and got Dad involved in the troop. His outsider turned insider take on the Scouts is fascinating.
The troop he decribes is very similar to the one I am an assistant Scoutmaster in.
His position on Scouting's biggest controversy in recent years, homosexuals in Scouts is pretty similar to mine.
The Scout's made a mistake when the national organization interpreted the Scout Oath's requirement to remain "morally straight"
to preclude gays from serving as Scout leaders. However I believe (the U.S. Supreme Court agreed) that the Scouts have
the right to set their own membership standards. I just don't think it should have adopted this one. I briefly
considered leaving the Scouts because of this position. I decided not to. I'm not ever going to be comfortable
with the idea that homosexuals can't be morally straight. I think it will have to change eventually, and Scouting
will be better for it.
Applebome points out that two of Scouting's biggest supporters, the Mormon Church and the Catholic Church are hostile
to gay rights and might have withdrawn from Scouting if forced to accept gay Scoutmasters. Most other churches are still
struggling over how to treat gay members. Boy Scouting might not be able to survive without the support of Mormons and
Catholics.
For me, it finally came down to what Scouting is about. Boys. The typical Boy Scout is between 11 and 16.
The only time they mention gays or homosexual is in jokes. I was in Scouts as a boy from 11 to 21. We rarely,
if ever, talked about anyone being gay. We were friends who were interesting in camping, hiking, camaraderie and
getting in trouble. During those years there were rumors of child molesters, but they were not gay. The homosexual
issue is not something that was on the boys' radar. There is no reason it should be.
Scoutmasters are trained to tell Scouts who ask questions about sex to speak with their parents. This reflects
that it is not the Scout leader's role to guide boys in that area. It should not be the role of Scouts to weigh in on
homosexuality either. That is an area that should be handled by parents and family. I think it should be up to
the individual troop to decide on the fitness of the adult leaders. If the troop committee (usually parents, pastors
and other volunteers) is satisfied with the moral straightness of a leader the issue should stop there.
Fri, October 3, 2003 | link
Thursday, October 2, 2003
Don't call me ...
I hate telemarketing calls, but I am a fan of the First Amendment. There are two court rulings striking down the
national do-not-call list. One from a federal judge in Oklahoma, is not a fatal blow. He simply ruled that the
FTC had no authority to regulate phone calls. Given broad support for the do-not-call list that is fixable. Congress
can give the FCC or FTC pretty much all the authority it wants to.
The second opinion, from a Colorado federal court will be harder to work around. The central ruling holds that exempting politicians and
non-profits from the do-not-call list violates the First Amenment. The judge said that a phone call from a marketer,
political campaign or non-profit are all equally bothersome -- each has exactly the same kind of intrusion on the home.
By giving a break to politicians and non-profits the judge said that the government was discriminating against types of speech
based on content rather than the harm posed by the intrusion. Content discrimination is very tricky in First Amendment
land. Maybe the break for non-profits and politicians should be scrapped. I'm not fond of those calls either. What about the break that non-profits get on postage rates? Couldn't a for-profit argue that the break discriminates
among types of speech.
I'd like to see Congress fix this. Few things it does really seem to make a difference in my life. Curtailing
telemarketing would be different.
Warning: do not put out candles with your butt
According the Sun (a dubious source) an English court has found a nightclub 30 percent responsible for the injuries of a "performer" injured
when a table collapsed under her. Her performance? Snuffing out the candles on a birthday cake with her "bum"
as the Brits cheekily put it. No cake for me thanks.
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