I respectfully dissent

When exactly did launching an "investigation" become the knee-jerk response to anything that happens? A UNC English lecturer rebuked a student for opposing homosexuality during a class discussion in an e-mail sent to all members of the class. The e-mail (reprinted in the N&O) read:

W]hat we heard Thursday at the end of class constitutes 'hate speech' and is completely unacceptable. [I]t has created a hostile environment."
She said he was a perfect example of the topic of discussion during class: privilege. She referred to Tim as "a white, heterosexual, [C]hristian male" who "can feel entitled to make violent, heterosexist comments and not feel marked or threatened or vulnerable.

The lecturer apologized for the e-mail within days.

I think a faculty member teaching "Literature and Cultural Diversity" should be allowed to express a point of view. Where she was wrong was to suggest that the student should not be allowed to express his views. But I don't know what the student said in class, it is possible he did cross the line.

If the lecturer apologized for going too far, why can't that be the end of it? Clashing views and debate are supposed be part of a university experience. The price of free expression is that sometimes in the heat of debate someone will go too far. However a well-time incident can always come in handy to promote someone's agenda, so we have this:

On Thursday, U.S. Rep. Walter B. Jones, a Farmville Republican, called for state Attorney General Roy Cooper to look into whether the professor broke any state laws. Jones also is asking the U.S. Department of Education's Office of Civil Rights to investigate.

If the e-mails violated any state law, then we truly live in a regulatory nightmare.

UNC-CH law professor Eric Muller opines that the incident was censorship. I agree, but it was quickly retracted and any investigation is pointless unless the point is to get in little grandstanding.

Some Winston-Salem NAACP members protested North Carolina's habitual felon law outside the courthouse yesterday. As I read or listened to the news reports I noticed a lot of confusion about how the habitual felon prosecutions work in North Carolina. Before you can decide whether you oppose the habitual felon law, you have to understand how it works and what it does. First a few facts:

Habitual Felon statute permits the state to prosecute a person charged with a felony as a habitual felon, if the person has three previous felony convictions. Timing of the convictions is critical. A habitual felon has to have committed and been convicted of felony #1, then commit and be convicted of felony #2, then commit and be convicted of felony #3.
Habital Felon is considered a status, not an offense by itself, so there is no effect unless a person is convicted of the fourth felony as a habitual felon.
Habitual felons are punished as Class C felons where the minimum possible sentence is 44 months. Typical habitual felons in my experience are looking at minimum sentences of 80 or 93 months.
Since the habitual felon statute requires a separate indictment, the prosecutor can and sometimes does elect not to charge an eligible defendant as a habitual felon.
How much of a "bump" a defendant gets from being charged as a habitual felon depends on how serious the triggering offense was. For example, a person charged with breaking and entereing who qualifies and is charged as a habitual felon would go from a Class H offense (typical sentences of 8, 9 or 10 months) to a Class C offense (typical sentences of 80, 90 or 107 months). A person charged with armed robbery would go from a Class D offense (61, 82, or 94 month typical sentences) to a Class C offense. If the triggering offense was a C or higher habitual felon status would be irrelevant.

The Winston-Salem NAACP told the local paper that the habitual felon law is disproportionately applied to African-Americans. I am not in a position to say whether this is true or not. There is no question that African-Americans are over-represented in the criminal courts (Richard Pryor once said that he went to a courthouse to see justice and that's what he saw "just us"). I think all of my clients who dodged the habitual felon bullet (meaning they could have been charged as habitual felons, but were not) have been African-American. Since court records typically show the race and the criminal record of each defendant, it would be possible to study whether African-American defendants were disproportionately targeted. If a greater portion of the qualifying African-Americans are actually prosecuted as habitual felons, that would be extremely suspicious. I'll be interested in the actual statistics.

Here are the flaws in the habitual felon statute:

Almost every defendant in jail will plead guilty if probation is guaranteed. Even if they have a colorable defense. I'd guess as many as a third might be acquitted if they took their cases to trial. No one wants to sit in jail for six months to a year waiting for a trial if they know they can plead guilty on Friday and go home on probation.
The state gets to decide who will bet the habitual felon status and who won't among those who qualify. I'm in the minority among criminal defense attorneys but I'm not sure why the DA needs that authority. What happens in some cases is that the DA brings a shaky case against someone who is habitual felon eligible and threatens to try him as a habitual felon if he takes the case to trial. That's quite a hammer to have.
Simple drug possession (not selling) can lead to felony convictions. Drug users should not be facing habitual felon sentences.

My suggested fix:

Simple possession felonies should not count as felonies for purposes of the habitual felon law. Possession only felonies should not be a triggering offense either.
Every person with the qualifying penalties should be treated the same. The DA should not have the ability to count the convictions for some defendants but not others.

Things the appellate courts have ruled improper in closing arguments:

Calling a defendant a “monster,” “demon,” “devil,” “a man without morals” and as having a “monster mind.” State v. Matthews
Describing a defense as "that's bull crap." Same case
Comparing the victim in a case to Columbine victims and victims of the Oklahoma City bombing, State v. Jones
Biblical arguments by prosecutor ("Listen to this in Deuteronomy. Cursed is the man who kills his neighbor secretly and all the people shall say amen. Cursed is the man who kills an innocent person for money, and all the people shall say amen. It's time to sentence this man, a murderer, to die and let the people of Bertie County say amen. Thank you.") State v. Gell
Calling the defendant an SOB (“He's an SOB. He's mean. That's what antisocial means and that's what he is.”) State v. Maske
Calling a defendant "lower than the bone belly of a cur dog."

Ken Lammers at CrimLaw has a post from the trenches of the law that tells a lot about what is wrong with the indigent defense system. Virginia seems more abysmal than most, according to a Washington Post story. Virginia pays $90 per hour for court-appointed work. Cases with potential sentences of more than 20 years have an attorney fee cap of $1096. Fees in cases with sentences fewer than 20 years have fees capped at $395. I guess this means if the client wants a trial, which could take anywhere from 2 days to a week or more, the attorney would get no more than $395.

North Carolina pays $65 per hour for non-capital criminal work, but there is no cap on the fee. Either the judge or the Indigent Defense Services director can refuse to pay attorneys for hours that seem excessive. The N.C. indigent defense system expects to end its fiscal year in $8 million in the hole.

Some argue that raising fees will have no direct effect on the quality of representation. But lets take a critical look at that idea: the state hires hundreds of attorneys and employs thousands full-time. If that is a great method of providing effective efficient represenation why doesn't the state simply take care of all its legal service needs that way. When the state has a pending environmental, condemnation or zoning case, just announce that the maximum fee for the case is $1096 and hire the first licensed attorney who agrees to take it. If that is good enough for a criminal defendant whose freedom and reputation is at stake, it should be good enough for a zoning matter.

Routine six-figure fees are not necessary, but fair compensation is. There is no reason a competent criminal defense attorney should earn less than what an attorney on the civil side of the law earns.

It’s that time of year in Winston-Salem. Just as surely as spring follows winter, the City Council again considers eliminating backyard trash pickup. City managers say it costs too much money, even though I’m sure that in constant dollars it costs no more now than it ever did. The fact is that city managers and city politicians hate backyard trash pickup and have spent years trying to justify getting rid of it only to be turned back by the outcry. It’s as if the political establishment wanted desperately to do something that it knew the public would not support and so trumped up a bogus scenario as a pretext to justify it.

Full disclosure, I am not aged, handicapped or unable to pull trash cans to the curb. I’d just rather not do it. I am an able-bodied man who would rather sit on my couch with a cup of coffee reading the paper while someone else takes care of my trash. I am not ashamed of that, nor do I think I should be.

I finally understand the official animosity to backyard trash pickup. Backyard trash pickup benefits every household in the city (OK, not apartments or condos) roughly equally. Everyone who generates any trash gets a piece of the pie. Governing groups hate programs that do that. There is no special interest group that lobbies for backyard trash generators. Unlike “please move here” or “please don’t leave” handouts to businesses, a parking deck for Krispy Kreme, tax breaks for tobacco companies backyard, or free greens fees for the city council on city golf courses, trash pickup benefits the city as a whole. It does not add dollars to the re-election campaign treasury and the mayor can’t stand in front of it and cut a ribbon. Most government these days seems to concerned with rewarding whichever constituency seems to be begging the loudest or with the best lobbyists.

One of our most thoughtful city council members, Dan Besse, has said he would follow his promise not to support the elimination of backyard trash pickup.

I think our backyard trash pickup is doomed in the long run. Doomed to go the way of attendants who pumped gas and phones answered by actual people. If city leaders don’t succeed in scrapping it this time, they will eventually. I see it as a test that of government priorities, providing a service that people want or directing benefits to a defined group. I’d like to see voters get angry enough to jeopardize the re-election of any city council member who votes to eliminate backyard collection. Maybe we need a rabble-rousing populist to urge supporters to “mount up and ride to the sound of the banging trash can lids.”

There are lots of legal issues that require probing, however for the sake national unity I join my fellow citizens in speculating about Janet Jackson's boob for a second day.

On the boob front, five FCC commissioners have issued statements about the boob baring. Commissioner Abernathy was "shocked and dismayed." "Classless, crass and deplorable" was what Chairman Powell called it. "Big Media's race to the bottom" according to Commissioner Copps. "Tasteless and inappropriate" in the words of Commissioner Adelstein. Commissioner Martin joined Abernathy in her "dismay."

I am relieved that even though every American knows exactly what happened (a TV camera was rolling), the government will conduct a full investigation. I wonder if the FCC will be able to conduct this investigation while simultaneously celebrating "National Consumer Protection Week."

I am already making space on my bookshelf next to the Indendent Counsel Report on Monica Lewinski. I am looking forward to middle aged white guys (like me) soberly discussing nipple clamps, the way they previously have discussed pubic hair, stained dresses, thongs, and cigars. Just for fun picture Henry Hyde saying "nipple clamp." What a day for democracy and the Republic.

Janet Jackson will barely fill out her bustier after the feds to do her what they did to "Bubba the Love Sponge." It is getting downright difficult to be a celebrity these days. So, whatever happens Martha, keep your shirt on. Stay tuned.

10. The check is in the mail.

9. I'm from the government, I'm here to help.

8. I'll never get this drunk again.

7. Your car will be ready at noon.

6. Your call is important, a customer service representativave will be with you shortly.

5. This will hurt me more than it does you.

4. It's not you, it's me.

3. I don't know who did it.

2. It was an accident.

1. "CBS deeply regrets the incident that occurred during the Super Bowl halftime show. We attended all rehearsals throughout the week, and there was no indication that any such thing would happen. The moment did not conform to CBS broadcast standards, and we would like to apologize to anyone who was offended."