I respectfully dissent

Here is what one client heard after his lawyer appealed his case:

COURT: Now, you explain to him that as I understand it, if he gives notice appeal, he will not be given treatment and he will not be given work release while this appeal is waiting. Does he want to give notice of appeal or does he want to not? It's up to him. He has a Constitutional Right to appeal. There will be no bond. And as I understand it, he will not be granted work release while he's got an appeal pending at the Appellate Courts. But that's up to him.

Maybe it's just me but that sounds petty and mean. It makes no sense to me for a prison system to give any consideration to whether an appeal is pending unless it is successful. As the judge acknowledged, there is a constitutional right to appeal and generally the state should not punish those who simply exercise the right. Any policy that denies an inmate access to prison programs just because of an appeal would be unconstitutional, in my opinion. If the judge is wrong, it's bad because he is using false information to encourage defendants not to appeal. If the judge is right, it's worse.

I've written the N.C. Dept. of Correction to find out if this really is its policy. If I get a response, I'll post a follow-up.

Follow up: According to the general counsel for the N.C. Dept. of Correction, prison staff do not factor an appeal into whether an inmate gets drug treatment, work release or other privileges. Ordinarily, prison staff who decide what programs an inmate can take part in are not aware of the status of an appeal.

This story about the router table for sale on ebay reminded me of a lot of things I have owned, and some I still do. Here is how the seller began his description:

This Ryobi router table is the worst thing I've ever spent money on. Period. I've wasted money on a lot of things in my life: women, cars, other things I didn't need, you name it, but I've never felt like I totally 100% wasted my money on something until I bought this router table. I've wasted money, but I normally got some sort of satisfaction out of it, no matter how small, I got something out of it This is the most worthless piece of crap item I have ever had the displeasure of working with in my life. I have much more colorful ways of describing this but I realize that there may be some kids that will read this so I will try to keep it PG.

It comes complete with most of the crappy accessories it came with. An example is the plastic pusher miter thingie that's so sloppy that I don't understand why they even bothered making it adjustable. It's really nice when you're trying to rout something at an angle and it slips in the middle of the cut and jerks the workpiece right out of your hands and flings it across the room. Or the super anti-precision fence that's almost impossible to adjust and keep in place. Or the slippery painted surface that wears off, exposing the rough surface that mars the workpiece as you slide it over. It does come with a power switch that always worked. I'll give it that. It has a really nice power switch. Some of the other small items got destroyed in a fit of rage one day after fighting it for a couple of hours.

I first heard about this in a piece on This American Life. I understand that there were 200,000 page views and that links were posted all over the web. It illustrates the possibilities of the internet. One disgruntled customer has soured thousands on Ryobi tools.

There is a pdf capture of the ebay auction here.

1. Grab the nearest book.
2. Open the book to page 23.
3. Find the fifth sentence.
4. Post the text of the sentence in your journal along with these instructions.

Here goes:

"Upon the expiration of 30 days from service of the notice issued pursuant to the provisions of Rule .0116(c)(1) above, the chairperson of the Grievance Committee will enter an order or reciprocal discipline imposing substantially similar discipline of a type permitted by these rules to be effective throughout North Carolina unless the member requests a hearing before the Grievance Committee and at such hearing ..."

The nearest book (at work) was the State Bar Handbook.

Just how “not guilty” are you? I mentioned to a friend of mine last week that it seemed unfair that Darryl Hunt’s ability to get payment from the state for the years he spent in prison depended on whether the governor granted him a pardon. Legally, no one is entitled to a pardon. It is an act of executive grace - or more bluntly - whim. In North Carolina, the governor may pardon anyone for a crime committed in this state. People who were clearly guilty can be pardoned, while even those who have proved their innocence beyond any doubt can be denied a pardon. There is no appeal for a denial of a pardon. The governor is the last word.

I thought there should be a way for someone whose conviction was overturned to be entitled to compensation without having to depend on the pardon process. He replied that that would mean that someone who may have committed an offense to be compensated if the conviction were overturned for something other than actual innocence (such as a botched search). For example, I recently had a search case reversed on appeal. My client should be set free after spending time in prison, but only a pardon would entitle him to something for that time. My head says that if a conviction was an error, the defendant should be entitled to something for having to serve time. However, my gut says that for those released for something other than actual innocence, they should not get compensation from the state.

Other scenarios get murkier though. Sometimes criminal cases are reversed based on insufficiency of evidence. For an example see State v. Gilmore. The reversal is based on the weakness of the state’s case rather than on a showing that someone else committed the crime. These cases are different than cases like Hunt. Hunt was cleared of any involvement in a murder. DNA tests pointed to another suspect who confessed and stated that he acted alone. Hunt was in some ways on easy call. What happens to folks released after the court ruled that the evidence was too shaky for a conviction? Some are lucky, actually guilty people who got away with it. Others might be deserving actually innocent folks who have served time for a crime they did not commit. In order to get something for their time behind bars, a pardon is the only option.

Fighting terror may be Job 1 for the Department of Justice, but there is never a bad time to trot out the porn industry for a perp walk. There is nothing quite like the sight of pasty-faced guys in cheap suits being carted away while agents in FBI windbreakers cart away boxes of blow-up dolls, DVDs and various unmentionables.

I wonder what it feels like for staff left off the A-team currently fighting terror. The Baltimore Sun offers a look. I remember being new on a job a few years ago. After a few weeks the boss called me in and said "You've been doing such a great job that we are going to give you a great project to work on." The project was producing an in-house newsletter for the company. We both knew it was a thankless, stupid, pointless task but could not publicly admit it. I think the agents who drew the porn detail must feel the same way. Sidelined on a project staged for political effect that will have little effect on anyone, unless you happen to be an unlucky porn peddler. Check Eugene Volokh's take on the likely track of the War on Porn.

A Frontline look at porn.

Justice Scalia has apologized for the seizure of reporters' tape recorders during a high-school speech mentioned in my last post, according to the Guardian Unlimited.

Scalia said that the deputy marshal who took the tapes was not acting at his direction.

The whole incident reminded me of the attitude some judges adopt after a few years of life in "the bubble." It is perfectly plausible that the marshal was not carrying out Scalia's direct orders. She simply knew that he did not like recordings and did what she thought he would have wanted. Judges are surrounded by clerks, bailiffs and staff who cater to and smooth the way for them. Lawyers suck up to them. They are the only public officials I know of who can summarily jail someone for offending them. At the level of the U.S. Supreme Court, it must be dazzling.

I think at some point you would come to believe the hype. The justice deserves credit for apologizing, but there should be some judicial soul-searching about the atmosphere that led to the incident.

New York Times Op Ed on the seizure

Volokh conspirator calls for apology (which has happened)

The same conspirator points out that a justice may condition a willingness to make a speech on the absence of TV or sound recording, but cannot stop media from airing footage obtained.

While Supreme Court Justice Antonin Scalia spoke to high school students about the importance of the Constitution, a federal deputy marshal forced a reporter to erase a tape recording of the speech and confiscated another's tape recording. Justice Scalia had requested no recording of his remarks, but there was no announcement made the recording was prohibited. (This from the Hattiesburg American).

The speech included the remark:

"You may wonder what makes our Constitution so special. I am here to persuade you that our Constitution is something extraordinary, something to revere."

Of course the Constitution has its downside, as well. It frowns on government officials summarily confiscating the property of others.

I get lots of questions about taping other people. My typical answer is that it is OK to tape something someone else says as long as you are a participant in the conversation or a lawful spectator. If the ground rules for a venue (such as a concert or a speech) prohibit recording, the recorder can be asked to leave or denied entry. However I don't believe that anyone has the right to confiscate or destroy a recording that has already been made. I worry that a law enforcement officer seems to feel that it is her duty to carry into effect the whims of a judge outside of his official duties.

Outside the Supreme Court, a justice is a citizen, his requests or demands about TV cameras, recordings or photos carry no more weight than those of anybody else. It is too bad that someone who makes a career interpreting the law thinks otherwise.

Remember this "I Love Lucy" episode? Lucy and Ethel came up with that crazy scheme that Lucy did not want Ricky to find out about, but then the whole thing went horribly wrong and Ricky found out and was angry causing him to yell "Lucy, you got some 'splaining to do!" (Come to think of it, that was every "Lucy" episode, I guess that is why I have always been an Andy Griffith kind of guy.)

Back to the 'splaining though. That's how I feel after learning that 60% of U.S. corporations paid no income taxes for 1996 through 2000. This tidbit comes not from Ralph Nader or socialist nitwit but from the federal government's own General Accounting Office. (Story on CNN website).

So although the corporate income tax rate is 35%, most paid nothing. And get this, for 2000 , 94% of us U.S. corporations paid less than 5% of their total income in taxes. (Oakland Tribune story)

This means that I paid more income tax than 60% of U.S. corporations. There are homeless people who paid more in income tax than 60% of our corporate citizens.

Reasonable people think about taxes as the dues you pay for being a citizen. They pay for the military, interstate highways, the FBI, the court system (corporate America is no stranger to the courtroom) and the Mars Rover. Many of those things benefit corporations as well as citizens, but many corporate citizens are freeloading. I pay dues as a member of a Boy Scout troop. That money puts gas in the bus for camping trips, buys supplies and supports a big piece of land in Surry County for us to use. If I found out that 60% of the troop was not paying dues, I might be angry. I might ask why. If I found out they could not afford to pay, I might settle down. But if the answer was a convoluted economics lecture that contained the terms "double taxation," "pass-throughs" or "tax credits," I would think that I was being cheated. And I would be right.

A Newport News, Va. cop spotted a parked car at 3 a.m. with the tailights on and investigated by shining his flashlight in. Inside he saw woman receiving oral sex from another man. The officer charges each, not with indecent exposure, but with a crime against nature, a felony. Full story in The Daily Press, which had the poor judgment to hire me in my pre-law days.

The woman's lawyer pointed out the that U.S. Supreme Court ruled that consensual sex acts between adults cannot be crimes under the Constitution in Lawrence v. Texas. Apparently Virginia's crime against nature statute says nothing about whether the act was public or not. Comments from the prosecutor and the judge caught my eye:

Stating that it was beyond the boundaries of his job to rule on the constitutionality of a statute, Newport News General District Court Judge Bryant L. Sugg denied a motion to dismiss the case. (It is possible it was not the right stage of the case to raise such an objection). It is pretty much settled law (since 1803 in Marbury v. Madison) that the courts are supposed to rule on the constitutionality of a statute.
The prosecutor said that the constitutionality of the statute "is a matter for the legislature." Well actually it is not. Since when does the legislature decide on whether a law is constitutional? How would that work, vote first on enacting the law and take a second vote on the constitutionality?

A judicial decision ruling that a particular law is unconstitutional does not erase the offending statute from the statute books. The decision does bar enforcement of the statute. For example, the North Carolina constitution (which was extensively revised in 1970) still contains a provision barring "any person who shall deny the being of Almighty God" from holding public office. Religious qualifications for public office are were ruled unconstitutional in Torasco v. Watkins in 1961.

Charlotte NC police were taking a similar stance on crime against nature charges back in July. I blogged about that then.

Fayetteville's most important contribution to North Carolina is the fact that no matter how bad the place you live is, you can say "well, at least we're not Fayetteville." Other places have their petty corruptions, local screwballs, graft and incompetence, but Fayetteville shatters the barrier. If Raleigh is VanCliburn, Fayetteville is Liberace. If Winston-Salem is Ringling Bros., Fayetteville is Siegfried and Roy.

Staff at a Fayetteville group home regularly took a resident to a strip club and occasionally allowed him to work as a bouncer. Two employees accompanied him on each trip and gave him money for lap dances. His cover charge was waived since a group home employee was married to the club owner.

From the AP

GREENSBORO, N.C. -- A North Carolina fifth-grader has been charged with assault for knocking out a boy in a school bus fight over a snack cake.

The principal of Cone Elementary School in Greensboro said 9-year-old Kevin Logan had skipped breakfast and when he got on the bus, he began eating a Little Debbie Zebra Cake, because he was hungry.

According to the principal, when the boy sitting next to him asked for a bite, Kevin said no and was smacked in the face with a stuffed Tweety Bird. Kevin hit back, but was slammed against a window and hit in the back. Then he fell in the aisle and was stomped.

School officials said when the bus driver pulled the aggressor off him, Kevin was unconscious.

He was treated at a hospital for minor injuries and released. His mother said he loves Zebra Cakes, but said it's a shame "it got to this point over something like that."

I might have said "No, I will not share my snack cake, however I will gladly let you have a swig from my can of Whup-Ass"