Please don't whine to me about the things my clients ask you to do. Clients don't ask us to do unreasonable things-- they ask us to do things that they pay us for, which is how we make money. When you complain about these things to me-- or when I overhear you say things like "They don't pay us enough to...." I get very worried that there is some seepage of your attitude in your communications with the client, and that is not cool. Clients are very hard to get. I worked hard to get the client you are bitching about, and right now, as I am writing this, someone else is working to steal the client from me. I know-- that's how I got the client in the first place. When you are anything short of enthusiastic about the most mundane thing that the client has asked for, what the client hears is that we do not want to do his work. Trust me, there are not enough clients, and there is not enough legal work in the world to be feeling this way about something that one of our clients asks.

Fundamental to a democratic society is the ability to wander freely and anonymously, if we so choose, without being compelled to divulge information to the government about who we are or what we are doing.  This "right to be let alone" -- to simply live in privacy -- is a right protected by the Fourth Amendment and sacred to us all.

• 51 police officers killed in the line of duty
• Sex offenders loitering outside schools and daycares
• Terrorism has changed the way we live and think
• Snipers randomly gun down people
• Anonymous people mail anthrax
• High school students go on shooting rampages.

How any of those incidents could possibly have been altered by a requirement that an individual identify himself to the police is unclear.  What is shows that in balancing tests the government interests will nearly always outweigh an individual's.  It is always "community safety," "war on terrorism," Columbine, sniper's versus Hiibel's right to be a law abiding but cantankerous old coot.  While the government is busy doing useful things like protecting the borders, building highways, and promoting abstinence, citizens are constantly engaged in less noble activities like drinking, pot smoking and being a cantankerous old coot.

Under the rules for a Terry stop an officer may pat down a suspect to determine if he is carrying a weapon.  An officer's safety is greatly increased when he is able to disarm an individual he is dealing with.  The officer is no safer simply because he knows the individual's name.

The real reason to demand identification is to enable the officer to determine if the person has outstanding warrants.  It is interesting that the deputy in Hiibel's arrest did not pat him down at any point before arresting him.  If he was concerned about a weapon or danger, why not frisk him?  He also requested that Hiibel "produce identification" rather than just what his name was.  I've never run across a law that requires a person to carry identification at all times.

Terry stops make sense.  An officer has the right to briefly detain a person based on observations to determine whether the law is being violated.  During that encounter the officer is entitled to frisk the person and ask questions, but the refusal to answer questions should not be grounds for arrest.  Requring the person to identify themselves does reduce the risk of terrorism, sex offenses, shooting rampages or anthrax.  It is not a crime to be a cantankerous old coot, yet.  If it is becomes illegal to be a cantankerous old coot, you might as well turn every barbershop in America into a jail.

I'll bet the Supreme Court will let this pass though.  Scalia, Rehquist, Thomas are nearly certain to side with the government.  Breyer, O'Connor and Kennedy are swing votes, but two of the three will probably vote with the government as well, for five votes.

1. Adult same sex partners have the can engage in sex acts in private without government interference. (narrow holding, confining case to its precise facts)
2. As long as sex activity is conducted in private and no money is exchanged the government cannot interfere. (broader)
3. The government cannot interfere with the private sex acts of consenting adults (very broad)
4. The government has no say in who, what, or how many one engages in sex or matrimony with. ("parade of horribles" broad).

An attorney trying to convince a court that anti-bigamy laws were unconstitutional would have to argue that the Lawrence holding was something close to #4.  Your client would lose if the holding is 1 or 2 and probably 3.  The #4 scenario was brought up in the Lawrence dissent, that if private sexual acts are something the government can't regulate then "fornication, bigamy, adultery, adult incest, bestiality, and obscenity" would all be OK.  In law school we learn to call this the "parade of horribles" gambit.  The dissent writer (Scalia) is arguing that if the government can't regulate sexual mores, then it cannot prohibit bigamy, incest or bestiality (although legalized bestiality probably does not have much of a following in the public at large, including that term on a blog sends the hit counter spinning).  In addition, the dissent argues that same-sex marriage is practically inevitable after Lawrence.

I am not a constitutional scholar looking out over the quad from my ivy-covered tower, and I can't spell out a grand constitutional theory.  I predict that laws against prostititon, adult incest and bigamy, will withstand constitutional challenge.  A majority would likely say that there is enough potential harm (or bad secondary effects) from bigamy and prostitution to justify state interference in those otherwise private sexual activities.  Incest has too much of an ick factor to be constitutionally protected.  Anti-adultery laws (adultery is still a crime in NC) are a close call, but I think they would survive a challenge.

But if a bigamist is your client you are stuck with that fact.  You need a broad reading of Lawrence to win.  If the bigamist is open and neither wife objects you need to convince the court that the government has no good reason to prosecute your client for having two wives.  Read Lawrence as well as other cases that stand for the principle that the government needs a good justification before regulating sex and relationships.

Do you have a difficult argument to make, sure.  If this stuff was easy we lawyers would not be able to charge so much.

• I don't have to be "thankful" the case does not go federal.  I know the feds are not going take most cases.  That decision is not in my hands and usually there is not much I can do to influence where the case is tried.  That is largely an empty threat.  The feds cannot handle more than 30-40 criminal cases per month for the whole district (1/3 of North Carolina).
• I hate taking plea offers to a client in the courthouse holding cell (the bullpen).  I have to explain everything to them in a room the size of a shower stall, while other inmates pound on the door asking me what time it is.  The client has to make up his mind right then and there.  No time to talk to family.  Little time to think it over.  A good chance he will later blame me for not giving him enough time to make up his mind.
• It is not my problem that the DA's office has set up a cumbersome bureacracy to screen its cases.  Make an offer you have the authority to make so I can discuss it with the only person who can make the decision.  It is pointless to tell me to be ready for court if you can't tell me what to be ready for.
• No one is trying to help me out, but I am sorry you called too.

• Cheney has been sued in his official capacity only.  The narrow question presented in the Cheney case is whether the law permits the committee Cheney headed to withhold the documents the plaintiffs are seeking.  Cheney is not personally accused of any wrongdoing.  Anyone who headed that committee would be sued.  If someone else succeeded Cheney as Veep, that person would be automatically substituted as a party.
• He was not that chummy with Cheney during the hunting trip.  They were never alone together and never occupied the same blind.  Cheney and Scalia were at the camp together only for 48 hours.
• Since no one can take Scalia's place in the event of recusal, his absence from the case creates the potential for a 4-4 tie with no resolution of the issue.  Only in the case of a real conflict (rather than the appearance of a conflict) should a Supreme Court Justice step aside.
• The fact that major newspapers have called for recusal is not a reason to do so.

After reading the opinion (I predicted he would not recuse himself), I think Scalia made a reasoned decision against recusal.  I especially agree that if recusal is not warranted under the facts or the law, what newspaper editorials call for is irrelevant.  If Scalia correctly described the trip, many newspapers got the facts badly wrong. 

The federal government will spend the following amounts as part of Medicare (according to the New York Times)

• $12.6 million for advertising this winter,
• $18.5 million to publicize drug discount cards this spring,
• $18.5 million this summer,
• $30 million for a year of beneficiary education starting this fall
•  $44 million starting in the fall of 2005

That is $123 million spent (over 2 years) on things like video news releases in which the government hires actors to interview government officials while posing as reporters.  $123 million spent not on pills, capsules, creams, or other pharmaceutical products but on puffery.

This reminds me of a story I heard years ago:

The federal government used to park surplus planes out in the desert where the risk of corrosion was minimal.  One day a congressperson toured the site and noticed that there were $100 million dollars worth of aircraft with no one watching them.  The legislator get Congress to authorize hiring a security guard.  Later another congressperson got concerned about whether the guard was really watching the planes rather than sitting around or dozing.  The legislator got Congress to agree to hire a supervisor to make sure the guard was making his rounds.  The supervisor soon got a secretary to answer his phone so that he was able to supervise the guard as well as show legislators the parked planes.  The office then needed a payroll clerk.  One day a legislator then noticed that the security operation was costing $250,000 per year just to watch planes.  Irate, the legislator demanded budget cuts, so the office decided to lay off the security guard.

Dear Indigent Defense Attorneys:

As you know, due to chronic under-funding of indigent defense, payments to private counsel and defense experts are typically delayed toward the end of each fiscal year.  We are writing concerning the anticipated shortfall in this fiscal year’s budget, and the delay it will cause in payments to attorneys and experts over the next few months.

The indigent defense fund ended fiscal year 2001-02 approximately $7.4 million in debt, and all of those unpaid fee awards had to be paid out of funds budgeted for fiscal year 2002-03.  The IDS Commission submitted a fiscal year 2002-03 budget request to the Governor and General Assembly that sought sufficient funding to pay off all of fiscal year 2001-02’s debt and keep payments to attorneys timely.  While the IDS Commission is extremely grateful that the General Assembly appropriated some additional funds to indigent defense during fiscal year 2002-03, there still was insufficient money to pay

off IDS’ debt and cover the demands on the fund.  As a result, the fund ended last fiscal year approximately $8.7 million in debt, and all of those unpaid fee awards had to be paid out of funds budgeted for this fiscal year (2003-04).

According to current projections, the indigent defense fund will again be ending this fiscal year with at least $8 million debt, which will represent a payment delay to private attorneys and experts of at least 8 weeks.  We expect to issue checks early in April that will cover attorney and expert fee awards received at the AOC through late March.  We also expect to issue checks early in May that will cover attorney and expert fee awards received at the AOC through late April.  However, if current projections are accurate, once checks have been written in early May, there will be no more money to pay private

attorneys or experts until the new fiscal year begins on July 1, 2004.  The IDS Commission members and IDS Office staff realize that this will create a great hardship for you, and are extremely sorry.  Unfortunately, however, there is nothing more we can do to generate additional funds this fiscal year.

The IDS Commission recently submitted to the Governor a proposed expansion budget for fiscal year 2004-05.  In that proposal, IDS requested an additional appropriation of $13 million-$8 million in non-recurring funds to cover the anticipated debt at the end of this fiscal year, $2 million to restore next year’s funding to the same level as this year’s, and $3 million to accommodate a small amount of growth next fiscal year.  We will do everything we can to convince the Governor and General Assembly that adequate funds must be appropriated to allow IDS to pay off last year’s debt and maintain timely payments to appointed counsel.  However, we need your help to keep your payments timely.  Please contact your legislators and the Governor about the importance of adequate funding for indigent defense, and in support of IDS’ expansion budget request.  Once you have done so, please let us know about your contact and any reaction you received.  The success of our expansion budget request will depend greatly on our grassroots lobbying with our local legislators.

Having studied originalism and its various manifestations for years now, ... Scalia's ruling doesn't rely on that methodology--this time.

   This time, Scalia's is relying on Blackstone and the "plain meaning of the text" guidelines for English Common law and contractual interpretation.

   The intriguing question to me is "Why?"  Why is Scalia adjusting his methodology to advance the rights of the accused?

   Cass Sunstein did a study a few years ago of the justices' written opinions and found that none maintains a consistent constitutional interpretive method, that each used any number of reading strategies to support his conclusions.  Sunstein wrote that, in sum, the overriding philosophy behind the opinions of the Court was pragmatism: Justices use whatever framework gets them to where they want to go.

   So I'm interested in why Scalia wants to go here.  My guess is that it advances his overall public message that the justice who interprets least interprets best, but who knows?

1. MBNA reviewed the information in its CIS (Customer Information System) to see that the name and address was the same as that on the complaint
2. Noted that the computer file displayed a code indicating that Johnson was the sole party responsible for the account.

Johnson sued under the FCRA and a jury agreed with her that MBNA's investigation was not reasonable and awarded her $90,300 in damages.  MBNA agents testified that, in investigating consumer disputes generally, they do not look beyond the information contained in the CIS and never consult underlying documents such as account applications.  In other words MBNA would never consider the possibility that a low-wage data-entry clerk improperly entered a code in its system.  The computer is always right, the customer is always wrong.  At least in "customer service" land.

MBNA had the gall to appeal and fortunately, lost.

Read the case for yourself here.

• that the witness was in custody and charged with a crime
• that the witness was not in jail and not a suspect
• the statement was given right after the event
• the statement was given two years after the event

Those days appear to be over.  The U.S. Supreme Court ruled today in Crawford v. Washington, that unless a person had the right to be present and cross-examine the witness at the time the statement was offerred it cannot be used unless the witness appears for trial and is available for cross-examination.

In Crawford, a man was charged with assault and claimed self-defense, his wife made an earlier statement to police that undermined the self-defense claim.  The wife could not testify at trial because the state where the assault occurred (Washington) prohibits spouses from testifying against each other unless the spouse on trial consents.  The state offerred the wife's statement to police officers into evidence.  The trial judge found it reliable and let it in.  An appellate court found it not reliable and threw it out.  The Supreme Court of Washington found it reliable enough to let in.  Then the U.S. Supreme Court weighed in, ruling that it does not matter whether the out-of-court statement was reliable or not, that since there was no opportunity to confront and cross-examine the witness (the wife) it cannot be used at trial.

Crawford is a huge case for criminal defense lawyers even though its premise is unremarkable: that confront means confront.  This is so because it overrules an earlier case (Roberts v. Ohio) that said there was no need to confront if the judge found the earlier statement reliable.

Justice Scalia wrote the opinion for five other justices (Stevens, Kennedy, Souter, Thomas, Ginsburg, and Breyer).  Not the most common lineup.  Justices Rehnquist and O'Connor concurred in the result.

Eugene Volokh points to this decision to show that Scalia does not always vote against criminal defendants.  While I think life under the constitutional scheme Scalia envisions would be nasty, poor, brutal and short, it is not true that he rules against defendants consistently.  He seems to favor clear rules and a narrow view of original intent, but will apply them when the outcome is favorable to a defendant.

A Volokh conspirator critiques  "balancing tests" such as the one overturned in Crawford.

A Bronx Public Defender gives a view of Crawford's impact on domestic violence cases where the victim refuses to testify and the prosecution offers statements about what was said over a 911 call or to officers who respond to the call.  I especially noted his comments about sensitivity training (or indoctrination) that judges hearing domestic violence cases get.  I know North Carolina prosecutors have sponsored domestic violence summits where judges are educated on how to handle domestic violence cases.  This has made me uneasy since I look at a judge as having to decide if an episode of violence has occurred rather than having an active role in the war on domestic violence.