I respectfully dissent

Can the police hijack your doctor? According to SFGate.com officers in San Francisco threatened an emergency room doctor with arrest if she did not perform a body-cavity search of a woman they believed had hidden crack in her vagina. Officers arrested the woman and performed a strip search at the jail, without succeeding at finding the drugs. They then got a judge to issue a "body cavity search warrant." The attending doctor at the San Francisco General emergency room refused saying it was not a medical emergency. The head of the San Francisco Police narcotics unit then told the doctor that they would telling the attending doctor:

that the next step was going to be to get a judge's order -- "and if you don't comply, we won't have any choice but to arrest you.''

Extra points to the officer for making it clear to the doctor that the judiciary is really just a law enforcement tool waiting to enforce the whims of narcotics detectives.

I hope it would not be that easy to get a judge to order a doctor to perform such a procedure. A search warrant is an order directing that a particular place be searched. It allows officers to use force if necessary to carry the order into effect. It is far from clear that a judge (or the state) would have the authority to order a third party to carry out the search. Maybe the doctor felt it was unethical for him to invade the body of a patient against the patient's will for a non-medical purpose. Some doctors have refused to take part in executions on the grounds that it violates the ethics of their profession to participate in the taking of a life. Seems to me the doctor was on solid ground morally and, I hope, legally.

Quite a few papers in the US and overseas ran story today about Neil Bush revealing that he had sex with women who showed up uninvited at his hotel rooms in Asia. "It was very unusual" Bush said in a deposition, "whatever happened, happened."

Any story about the embarrassing activities of presidential kin will always include a reference to the gold standard, Billy Carter. Many articles described him as the President's "beer-swilling" brother. Since I have a fondness for beer, I take exception to the derisive term "swilling." I have quaffed, imbibed, downed, slurped, swallowed, sipped, swigged, and (once) shotgunned beers, but I never "swilled." Only people we want to make fun of "swill." Ever notice that the Queen Mother was described as "reputedly fond of the gin and tonic" rather than a "gin-swiller." Of course the Queen Mother did not run a gas station or work for Libya.

With the discussion about building a base on the moon, I wondered what legal snags would have to be solved, such as:

Can just anyone fly up to the moon and build there?
What if someone on the moon base did something that would be a crime in the U.S.?

Some of those questions are answered by the Treaty on Principles Governing the Activities of States in the Exploration and Use of Outer Space. The treaty bars countries from appropriating areas of space and countries are responsible for national space activities conducted by a government or private group.

I had a law school professor who reported that someone had recorded a deed to the moon at the Guilford County Register of Deeds, but I've never seen it. A Google search will list lots of websites claiming to sell lunar property. The most famous apparently is "Head Cheese" Dennis Hope.

According to NPR, today is astronaut Buzz Aldrin's birthday. Aldrin was on the first moon mission and was recently in the news when conspiracy nut Bart Sibrel accused the 77-year old astronaut of punching him. Sibrel confronted Aldrin asking that he state under oath that he landed on the moon. Sibrel peddles movies claiming that the moon landings were faked.

Aldrin was not prosecuted. If he had been (assuming that he did punch Sibrel), this might have been a good case for jury nullification, with a jury finding in effect that Sibrel needed punching. Although many legal opinions recognize the jury's power to acquit despite overwhelming evidence, lawyers usually cannot argue for a jury nullification verdict and juries are not instructed that they have the power to ignore the law.

Yesterday morning I finished a jury trial in a criminal case, both defendants were found not guilty of assault with a deadly weapon inflicting serious injury. Usually outright wins are fairly rare for criminal defense attorneys, so my co-counsel and I should should have floated out of the courtroom on a self-congratulatory cloud. The problem: anyone with a pulse could probably have won that case. The state's witnesses (even the man allegedly assaulted) did not want to press charges and were generally abysmal. The reason the case was tried at all was a local version of a zero-tolerance policy known as the ZAP program. As I understand it once the local DA has determined that you are an ZAP defendant (ZAP stands for Zero Armed Perpetrators), a sort of no-deal, no-drop hard line policy applies to the case. The policy applies even if the case is a dog.

Zero-tolerance always works better in theory than in practice. The theory here, if you are an armed criminal the state will come down hard. The fact: our legal system utterly relies on an about 90% guilty pleas to minimally keep up with the workload. In my case, after reviewing the evidence few competent attorneys could advise the client to plead guilty. The result was that one assistant DA and two police officers were tied up on the case (for a day) and not working on something more productive. The taxpayers will pick up the tab for the defense lawyers. I spent about 17 hours working on the case.

It is up to the elected DA to set priorities, and he is ultimately accountable to the voters. But a zero-tolerance policy is not real world, there are only so man-hours available. Time spent on cases with crummy evidence takes away from cases that might really make a difference.

Expert witnesses in criminal cases are becoming more common. Here are the 2003 average hourly rates for various experts used in cases where North Carolina paid the expert (as well as the attorney) because the accused was indigent:

Arson investigator $115
Blood spatter $150
DNA $205
Fingerprint $100
Firearm $96.43
Hair/fiber $113.33
Handwriting $287.50
Neurologist $400
Pathologist $248.85
Pharmacologist $141.67
Physician $356.25
Polygraph $416
Psychiatrist $215.30
Psychologist $152.02
Radiologist $125
Toxicologist $219.44

Court-appointed attorneys in North Carolina are paid $65 per hour for non-capital cases and $90 per hour for cases in federal court. I am curious why the highest-paid expert per hour is a polygraph expert, at $416 per hour, that is more than a neurologist. It is also more than six times what the attorney is paid per hour (ouch!).

Update: I should have mentioned that the figures are averages paid in fiscal year 2003. The attorney fees are not averages but hourly rates fixed by the state (or the feds) for all attorneys who agree to accept indigent cases.

Read the full report here.

An "apology analyst" picked apart Pete Rose's apology on NPR today. In his book, Rose wrote

"I'm sure that I am supposed to act all sorry or sad or guilty now that I've accepted that I've done something wrong, but you see I'm just not built that way. So let's leave it like this, I'm sorry it happened and I'm sorry for all the people, fans and family it hurt, let's move on."

The apology is being faulted for being insufficiently sincere or in showing remorse. Maybe Rose is just honest -- he's sorry that gambling ruined his career, but he thinks everyone made too big a deal out of it. Maybe he is just sorry that he got caught. I'm not a baseball fan, but Rose was on the horns of a a dilemma: apologize after lying about the gambling for the last 14 years, which would be blatantly insincere, or be honest and take the hit for not being contrite enough. If Rose does not understand why it was wrong for him to bet on baseball games by now, he never will. An apology like the one expected by the baseball establishment would be a blatant lie. Jimmy "I have Sinned" Swaggart gave a masterful apology, but it was probably an act.

The faux apology happens in criminal court all the time. How sincere is an apology when it is delivered in hopes of reducing future unpleasantness? Twist someone's arm hard enough and they will say "uncle." Jurors in the Virginia sniper case chose execution because John Allen Mohammad showed no remose. Someone who randomly guns down people is not going to feel remorse. Expecting remorse from Muhammad is like hoping an earthworm will tap dance, no matter how hard it tries it won't happen.

Rose was a great ballplayer, but a sub-par man. He knowingly broke the rules of the game that provided him a living, he denied doing it for more than a decade, and he was convicted of criminal tax evasion. We should deal with him as he is. Either let him back in baseball or don't, elect him to the Hall of Fame or don't, but we shouldn't put words in his mouth.

Pete will personally autograph a copy of "My Prison Without Bars," for only $99.95, get yours here. How's that for contrition?

If there is something on the news I'm following I'm try not to write about it here unless I have some different perspective, think something that was overlooked, or I have some unusual insight. I figure no one is particularly interested in my personal views on Al Queida, abortion, or the Howard Dean campaign.

The Darryl Hunt story has been thoroughly covered, mainly by the Winston-Salem Journal. Briefly, Hunt was twice convicted of murdering a Winston-Salem woman who was walking to work. The woman had been raped and stabbed repeatedly. It is a Winston-Salem story and I practice law in Winston-Salem, but I have not had any involvement in the case. I know Mark Rabil, the lawyer who worked tirelessly for the last 20 years to free Hunt, but I have only spoken with him briefly about the case. Here is my 2-3 cents worth:

Courthouse scuttlebut: I and some lawyers around town look at this as a giant failure of the criminal justice system that we are a part of. The worst thing a justice system can do is convict and imprison an innocent person. It is frightening that an error this grave could have been reviewed so many times and yet gone uncorrected. When DNA tests excluded Hunt as the source of the semen, Hunt should have gotten a new trial. At Hunt's second trial the state contended that Hunt, along with two others, participated in the rape-murder. When DNA tests excluded all three as the semen source, Hunt the only one convicted, should have been granted a new trial. However the court reasoned that since Hunt was convicted of murder, not rape, the DNA did not exonerate him in the killing. The ruling was upheld on appeal. If that ruling was legally correct, then the law is a travesty. No one could seriously argue that a jury would have convicted Hunt of murder when the DNA evidence excluded him and the other suspects in the rape, but that was exactly the position the state took, and the courts agreed.
Discovery scam: Traditionally criminal law offers defendants few opportunities to require the state to share or copy evidence before trial. The state is required to disclose evidence that would be helpful to the defense. However, the prosecution makes the initial call on what would be helpful, a defendant can ask that a judge (who has little familiarity with the case) review the evidence turned over by the state to see if anything else needs to be released. In a civil case a litigant can inquire into almost anything about the other side's case, and even question potential witnesses under oath. But, in a criminal case, where someone's liberty is at stake, there is little or no chance to investigate the investigation. Requiring the state to put all its cards on the table before trial is not too much to ask when someone's freedom is at stake. Don't look for this to happen anytime soon. The district attorneys will yell and scream about how much time and effort it will take and how defense lawyers will abuse it.
A hopeful note: In "To Kill a Mocking Bird" Scout asks Atticus how the town residents can be so viciously racist as shown by the way they treated Tom. Atticus answers that while it is true that there is racism in the county that no one should overlook the good. For example the judge specifically chose Atticus to represent Tom to give him the best defense available. Winston-Salem has serious racial divisions, but I've always seen reason to hope since I have lived here. Darryl Hunt's lawyer, Mark Rabil, has devoted much of his career to freeing Darryl Hunt, because he was convinced his client was innocent. I know that I could not have stuck with the case as long as he has. The Winston-Salem Journal (the company the employed the victim) devoted a lot of time and space to its investigation wich sped the process for freedom along considerably. Without Rabil's work and the Journal's coverage Darryl Hunt would still be in prison now.