|
Wednesday, June 30, 2004
What the American Flag Stands For
by Charlotte Aldebron (12 years old)
The American flag stands for the fact that cloth can be very important. It is against the law to let the flag touch
the ground or to leave the flag flying when the weather is bad. The flag has to be treated with respect. You can tell just
how important this cloth is because when you compare it to people, it gets much better treatment. Nobody cares if a homeless
person touches the ground. A homeless person can lie all over the ground all night long without anyone picking him up, folding
him neatly and sheltering him from the rain.
School children have to pledge loyalty to this piece of cloth every morning. No one has to pledge loyalty to justice and
equality and human decency. No one has to promise that people will get a fair wage, or enough food to eat, or affordable medicine,
or clean water, or air free of harmful chemicals. But we all have to promise to love a rectangle of red, white, and blue cloth.
Betsy Ross would be quite surprised to see how successful her creation has become. But Thomas Jefferson would be disappointed
to see how little of the flag's real meaning remains.
This essay was posted here. Link from Is that Legal?
N.C. Supreme Court Reinstates God
Before testifying, every witness shall be required to declare that he will testify
truthfully, by oath or affirmation administered in a form calculated to awaken his conscience and impress his mind with his
duty to do so.
Rule 603, North Carolina Rules of Evidence.
Witnesses are required to take the following oath before testifying:
You swear (or affirm) that the evidence you shall give to the court and jury in
this action between the State and ___________ shall be the truth, the whole truth, and nothing but the truth; so help you,
God.
A judge is the closest thing to a king in the courtroom. He (or she) can require those present to stand for opening
and closing court and put them in jail if they refuse. You can be held in contempt (jailed or fined) for chewing
gum, not tucking in your shirt, wearing a hat, or allowing your cell phone to go off. Judges have vast discretion in
how to hold court. I frequently hear judges say "in my discretion" when there is a court reporter present. When some
particular point is in the judge's discretion, a successful appeal requires showing "an abuse of discretion."
One thing the judge apparently has no discretion on is whether God's name should be invoked. A North Carolina district
judge caused a stir when he decided to omit references to God from the traditional court opening. He also instructed
clerks to use the affirmation unless a witness requested an oath that mentions God. The usual practice was to assume
that a witness will swear an oath rather than affirm. The North Carolina Supreme Court ordered the judge to cut it out.
(Story from the AP).
The ruling appears to have come lightning fast judging by the court's typical pace. According to the Supreme Court
website, a petition seeking the order was filed on June 25, 2004. The order came June 29, 2004. Neither the petition
nor the order is available online and it unclear whether there was a hearing or responses filed before the order was issued.
I'm not sure what point, if any, the judge was trying to make. I am uncomfortable invoking God in the courtroom and
I usually opt to affirm if when I remember. Although I have not spoken to God about this, I imagine he is pleased.
Once again witnesses and spectators in Iredell and Davidson counties will pause before returning to the petty squabbles
that are the daily fodder of the District Courts to hear a government employee drone out His name. It is not the Herald
Angels singing, but it's something.
Tuesday, June 29, 2004
Blow before you go
Tue, June 29, 2004 | link
Passing the buck
Judges are asking for help in applying the Blakely decision to N.C. sentencing:
John Kennedy, head of the Administrative Office of the Courts, said Friday several
state judges have called him to inquire about the effects from the decision that came down Thursday. ...
Kennedy said Friday the Supreme Court's ruling has caused
confusion, and the North Carolina standards will undergo examination to make sure they clear the new constitutional hurdle.
But because North Carolina's guidelines do not give judges the same kind of sentencing leeway as did the Washington state
rules, it is likely that few changes will be needed, Kennedy said.
"On a first look, it looks like [the ruling] is more directed
at the federal sentencing guidelines, and it won't affect North Carolina sentencing that much," Kennedy said. "People are
already working on it. Some judges are going through some things today, and they believe we're going to have to look at the
sentencing laws and everything and evaluate them to be sure. But they generally think that most of it wouldn't apply here."
I have an unorthodox suggestion, "read the opinion and make up your own mind." The
Administrative Office of the Courts is the unelected bureacracy that oversees the operation of the court system. State law does not assign it a role
in advising judges about what the law is.
Monday, June 28, 2004
Are the Guidelines a goner?
A disaster for the Federal Sentencing Guidelines and some state sentencing schemes came down last week in Blakely v. Washington from the U.S. Supreme Court. The court ruled that a judge's factual findings cannot increase a defendant's sentence
beyond what the sentence would without the factual finding. In that Blakely a man pled guilty to second-degree kidnapping,
which ordinarily resulted in a sentence of 49 to 53 months in prison. However Washington law permitted a judge to impose
an exceptional sentence, 90 months in Blakely's case, if he found an aggravating circumstance. Blakely's judge found
that the he acted with deliberate cruelty, an aggravator. For fans of the Federal Sentencing Guidelines the outlook is grim. The guidelines are designed to look at the "real
offense" instead of the charged offense to determine the sentence. The guidelines instruct the judge to look at
all kinds of "relevant conduct" to figure out the sentence. Typically "relevant conduct" are actions like possessing
a gun, threatening death, or involvement of a minor that increase the offense level and the sentence. Less charitably
the "real offense" is "facts extracted after trial from a report compiled by a probation officer who the judge thinks more
likely got it right than got it wrong." (Justice Scalia's words).
North Carolina's sentencing scheme is more based on the charged offense. Lots of sentencing experts prefer the
real offense system, but the downside (other than violating the Constitution) is that the real offense system has to be pretty
complex. The current federal guidelines manual runs 624 pages. North Carolina's Structured Sentencing law avoided the "real offense" approach because it would be impractical
with the caseload the state courts handle. Instead Structured Sentencing fixes a sentence based on the offense of conviction
and the criminal history. Every felony is designated as class A through I. Judges use a grid for sentencing with
the possible sentences appearing in the cell where class and criminal history intersect. Each sell has a mitigated,
presumptive and aggravated range. For a defendant to get a sentence in the aggravated range a judge must find that an
aggravating factor exists. As I read Blakely, it prohibits sentences in the aggravated range unless a jury finds that the aggravator exists
or the defendant admits that the aggravator exists. In my experience sentences in the aggravated range do not happen a lot. Making the findings takes some extra time
and paperwork, which slows down the guilty plea assembly line that is the norm in our local courts. Also a defendant
can appeal a sentence in the aggravated range, and I often see judges sentence at the top of the presumptive range rather
than give a defendant the chance to appeal.
What I like about Blakely is that it sets out a fairly clear rule that any factor that increases punishment must be proved
to a jury beyond a reasonable doubt or admitted. The sentencing factors that the guidelines spawned became an attractive
alternative to offense elements, because they could be proved by a preponderance rather than beyond a reasonable doubt.
Good riddance to an end run around the jury.
(UPDATE: I was right that aggravated range sentences are not common. According to the N.C. Sentencing Commission,
only 7% of sentences are in the aggravated range. If the Supreme Court decides to apply Blakely retroactively, those
who got aggravated sentences could seek a reduction.)
Sunday, June 27, 2004
A would-be blogger
One friend of mine, Chip, is trying to shame another friend of mine, Joey, into starting a blog. I get Joey's diatribes by e-mail, and he puts up with mine. I have gotten a lot of ideas
for posts from things Joey has sent me. Sometimes I have posted them verbatim.
I agree with Chip. Joey should start a blog.
Saturday, June 19, 2004
Don't pay incur the fine if you can't do the time
It is a good thing we live in a country where respect for individual liberty is paramount:
MIAMI -- A teacher's aide who forgot to put away her marshmallows and hot chocolate
at Yellowstone National Park last year was arrested, taken from her cruise ship cabin and hauled before a judge Friday, accused
of failing to pay the fine.
Hope Clarke, 32, crying and in leg shackles, told the judge she was rousted at
6:30 a.m. by federal agents after the ship returned to Miami from Mexico. She insisted that she had been required to pay the
$50 fine before she could leave Yellowstone, which has strict storage rules to prevent wildlife from eating human food.
Customs agents meet all cruise ships arriving from foreign ports and run random
checks of passenger lists, and a warrant claiming Clarke had not paid the fine was found in the federal law enforcement database.
U.S. Magistrate Judge John O'Sullivan, who had a copy of a citation indicating
that the fine had been paid, apologized to Clarke, who spent nearly nine hours in detention, and demanded that the U.S. attorney's
office determine what went wrong.
Assistant U.S. Attorney Peter Outerbridge conceded there were some "discrepancies."
Zach Mann, spokesman for U.S. Immigration and Customs Enforcement, called the arrest "an unfortunate set of circumstances."
But when you have a Supreme Court that OK's an arrest complete with handcuffs and a stay in a jail cell for a seat-belt violation punishable by a fine only, is this really that surprising.
Amazing how the government uses terms like "discrepancy" and "unfortunate" to describe a citizen hauled off a cruise
ship in handcuffs, shackled and held in jail for nine hours for a fine she had already paid. Doesn't she deserve more
than a Maxwell Smart-esque "sorry about that"?
Sat, June 19, 2004 | link
Fayetteville seal of disapproval
(This is a guest post, contributor's name withheld to protect the opinionated)
Let's say you're an agent for your government in its war on terror, and let's say that
in that capacity, you get a little nutty during an interrogation or something, and you beat a guy with a flashlight and the
guy dies 4 days later. Got all that? Okay, now, let's say some other agents of the government, fighting the same
war, abuse a few prisoners and turn their numerous abuses into Kodak moments, which, after the picture are developed
and discovered, brings the spotlight of media attention down upon all of your asses. Your government, feeling the heat--since
a memo, written by some other agents of theirs, has come to light that suggest all of your monkeyshines might have been sanctioned--decides
you low-level flunkies need to take the fall, and decides the best way for that to happen is to get medieval on your peon
asses, in a legal way, by turning loose its full investigatory and prosecutorial powers on you, which they do. Still with
me? Got all that? Okay. Let's say all that happens; here's what you don't want to see written in the papers:
Even his attorney, H. Gerald Beaver of Fayetteville,
said Thursday he was uncertain how the government might handle the case. "I was told things were classified that turned up
in the indictment," Beaver said Thursday. "I don't know where we are with this."
No, I'm not referring to that last quote, the one that makes his attorney sound
like a frighten little boy, although, to be honest, that concerns me, too. ("Who needs a hug? H. Gerald Beaver needs a hug,
doesn't he? Come here, H. Gerald. Come on. That's a good barrister.") What I'm referring to is that descriptive phrase after
H. Gerald Beaver's name When the full investigatory and prosecutorial powers of The Man are on your ass, nothing says, "I'm
going down, like a porn star," like the phrase "of Fayetteville" after your attorney's name. It's the
Goodhousekeeping seal of convictions when the book is being thrown at you.
Now, I'm not saying you wouldn't deserve to be a meat puppy for the burly and
psychotic of some federal cell block somewhere if you abused a prisoner or suspect in your care. That argument's not on the
table. What I'm saying is, at least, defend yourself. "Of Fayetteville"?! That's just asking for it.
(Me again: I recall one of the top criminal defense attorneys in N.C. saying
that when the feds have charged you in a high profile case you are like a fish in the bottom of the boat with someone taking
an oar and beating the air out of your lungs.)
Friday, June 18, 2004
Fees please
Should users of the criminal and civil courts subsidize things such as law enforcement pensions and legal services for
the poor? I was asked to take a position on whether court costs should be raised $5 with part of the increase being
allocated to legal aid organizations. There is a bill in the N.C. General Assembly that would do that.
I support the end, more money for legal aid, but not the means. User fees make sense as a way to pay for at least
a portion of government operations in some areas. When I used a camground at a state park last weekend, I thought it
was only fair for me to pay $15 per night to use it. Similarly it makes sense to charge user fees for getting a driver's
license, or to charge fees for things like agricultural inspection. But when the fees are used to pay for things other
than the program used, it becomes a cost-shifting scheme. I call it cost shifting because one group benefits, while
somebody else pays.
Here is an example: Larry gets a speeding ticket, for going 46 in a 35. If Larry wants to use my services he will
have to pay a user fee for my services. Now there Larry has a choice, he can hire me or represent himself. Lets
say that Larry uses poor judgment and decides to represent himself, so I get no user fee this time. Larry goes to court
and the DA offers to reduce the charge to a non-moving violation, provided Larry pays a $25 fine and court costs. Larry
agrees and congratulates himself on having avoided attorney fees, and I worry about how I am going to pay the phone bill.
Larry must now fork over $125 to the court system ($25 fine and $100 court costs). The $25 fine belongs to the
county school system. The N.C. Constitution says that fines are for the use and benefit of schools. So fine payers
subsidize public education. $17 of the court costs goes to the county to be used for the maintenance of the courthouse, jails
and other court facilities. $6.25 goes to law enforcement retirement and insurance. 75 cents goes to sheriff's retirement.
$74.95 goes to the state treasury to support the court system as a whole. $1.05 goes to the State Bar for support of legal
aid organizations.
Court costs in civil cases are parcelled out similarly except none goes to retirement progams.
Now law enforcement retirement and legal aid are all legitimate government activities but why should the users of the
court system subsidize them? And for that matter why should fines go to schools? The cost of providing law enforcement
includes providing wages and retirement for officers. It is only fair to spread that costs out broadly as possible.
Similarly a just society should provide a way for the poor to have access to legal services, if this is a societal good, why
should only part of society pay for it? Since all citizens benefit from these programs, why shouldn't all citizens be
taxed to pay for them?
I part company with the Libertarians when it comes to their enthusiasm for user fees. Taxes are so politically radioactive that we forget that taxes make
things like a military, interstates, NASA, Yellowstone Park, steetlights, fire departments and police possible. The
radiation comes from groups like Americans for Tax Reform that "opposes all tax increases as a matter of principle." Being "anti-tax" is about as sensible as being "anti-rain."
Taxes are money the government takes from us by force if neccessary. Taxes are a fact of life, like rain, annoying at times but a necessity.
If a government services is worth having, it is worth paying for. In the example above Larry might have wanted
my services. Maybe he thought it was worth $25 to him to have a lawyer, but that I was not woth my usual $125 speeding
ticket fee. The consequence to Larry is that he does without. It costs more to provide the service than Larry
was willing to pay.
Citizens demand a lot from government: parks, moon landings, public schools, interstates, prisons, ballistic missile
shield systems, hospitals. The power to tax is the power to destroy, but it is also the power to create. If a
good or service is really justified honest politicians will be upfront about how much it will cost and how we all are going
to pay for it. User fees and lotteries are not the answer.
I'm still pulled by the tension between my desire for the end and my distaste for the means. Legislators are telling
constituents that new or increased taxes are out of the question. In other words, "if you want more money, it will have
to be the fee increase or nothing." One person in favor of the fee increase pointed out that there is nothing wrong
with using the democratic process to secure dedicated funding for a cause. He also said that devoting part of a "user
fee" to some other cause is not a bedrock moral principle. He is right. However, I wonder if higher regard for
the process would not be a good thing. I hear a lot of lip service to the notion of state's rights and local control,
which are lauded until some state or city legalizes pot or sanctions gay marriage. I believe that government should
pay for things that benefit us all by taxing us all. If we are sending our politicians the message "no tax
increases" then that means no new services.
I am wary of gimmicky financing schemes proposed by the some governments. Usually the governments call
them "creative." Ordinary people call them "foolhardy" or "illegal." For example some North Carolina politicians
are pushing for a cancer treatment center that is expected to cost $180 million. The real question is whether it is worth spending $34 for every person in N.C.
over the age of 25 to build it. Sounds like a good deal to me. One way or another it will cost at least that to
have this cancer center built. Instead the debate is "how can we get this without raising taxes?" The real answer
is: "we can't." There is a lot of talk about borrowing and balloon payments, but if we aren't willing to spend $34 per
person to have this now, what reason is there to think that we will want to pay that much, plus interest 20 years from now? If it is worth having, it is worth paying for.
Tuesday, June 15, 2004
A punt saves the Pledge
The Supreme Court decided not to decide the Pledge of Allegiance case. A CNN reporter called it a "punt." The opinion cites the federal government's policy of non-interference in
domestic affairs of families. This federal "prime directive" is enforced about as strictly as the one on Star Trek. The non-interference policy does not apply to homosexuals, polygamists, sex education, federally supported marriage
education, Elian Gonzales, parents who owe back child support or thermal imaging surveillance of homes of suspected pot growers. Other than
those few issues you are pretty much free to run your family free from subject only to state interference.
And we all know that states rarely interfere with anyone's private affairs. Back to the reason for the punt. The father in the pledge case, Dr. Newdow, does not have "legal custody" of his
daughter. His ex-wife has "exclusive legal custody." Dr. Newdow apparently has regular visits with his daughter.
Many states distinguish between legal and physical custody of a child. This confuses many of my clients. I spend
a lot of time trying to explain it and I get a lot of blank looks. It is a hard concept to get your mind around.
"Physical custody" means who the child is with at the moment. A father whose child stays with him every other weekend
has physical custody of the child during that time. The rest of the time the mother has physical custody. "Legal
custody" means the right to make decisions about the child, for example where the child will go to school or church.
Whether the child will go to summer camp or not. Which doctor will treat the child or what course of treatment the child
will have. Or whether the child is allowed to recite the Plege or not. Sometimes in custody cases the court award the
parents "joint legal custody." That means that the parents share authority and make decisions together. In other
cases the court may award one parent "sole legal custody." That means that the parent with sole legal custody has the
final say.
Joint legal custody sounds nice and fair, but the drawback comes when the parents cannot agree. For example, mom
wants to home school the child, but dad objects. Or dad wants the child to get braces, but mom objects. Or dad
does not want the child to date until age 18, but mom thinks 16 is OK. In the event of a true impasse, the only option
is to go before the court for a hearing where a judge will decide. This is very impractical. A judge is in no
better position to decide these questions than the parents.
In Dr. Newdow's situation his wife has exclusive legal custody, which means that she has the last word on whether the
child should participate in the pledge or not. She has stated that she has no objection to the pledge, encourages it
and does not want their daughter to participate in the case. So in this case it is not be the school district that is
interfering with Dr. Newdow's right to direct the religious education of his daughter, but his ex-wife.
Tue, June 15, 2004 | link
Thursday, June 10, 2004
Red light district
Area man (David Hoggard, actually) is frustrated after his car is caught by a red-light camera.
Interesting blog, I'm adding a link to the list on the right.
Oh yeah?
If the U.S. did not have a judiciary I think that legislatures would have to invent one just to have an entity to rail
against.
Check out this bit of Congressional cuteness. This bill would take away the federal courts' jurisdiction to rule on challenges to official endorsements of religion.
I'm looking forward to the day when a governor can issue a fatwa or a state judge can dress up like Moses for court without
pesky federal judges getting their robes in a wad.
Tip of the cap
Doctor pushing for malpractice award cap sued city, winning $6.2 million for sled crash in park. The award included
$1.5 million for his pain and suffering.
Unethical? No. Hypocritical? Probably. The irony here is so thick, that this story has the feel of an urban
legend.
Wednesday, June 9, 2004
Fair schmair
"But if I accept your reading of the statute, the outcome is unfair."
That was the judge's reaction to my argument this morning in a case. I'm not impartial, but I think the statute
we are arguing over dictates exactly the result I am seeking even with an attendant unfairness. First, in any litigation
someone's ox either has been or will be gored. Someone has been hurt, someone else may be resonsible for that, someone
else may have to pay. There is always plenty of unfairness to go around.
Second, this case is in bankruptcy court, bankrupty is for people who can't pay their debts. Honest people get
hosed in bankruptcy court every day, just ask anyone who has loaned someone money only to hear from the bankruptcy court that
they will be legally prohibited from collecting ever. That is hardly fair. Unfortunately for the creditor the
legislature has determined that society's interest in giving citizens a fresh start is more important than repayment to an
individual. (Full disclosure: I represent primarily debtors).
Third most legislation stacks the deck in some particular interest's favor. It is not a pretty process. If
the particular law gives some group an advantage (and that is what legislation is all about) is it proper for a court to bend
over backwards to read that advantage out of the law?
A later thought: To give this some context without boring anyone to death, the claim involves
an asset we are claiming as exempt. Most states allow people to shield some assets from legitimate creditors.
Exemptions allow people to keep certain classes of property from their creditors. Homes, pensions, retirement accounts,
personal injury settlements are often shielded to some extent from the claims of creditors. Florida and Texas have unlimited
"homestead exemptions" that allow the entire value of a home (even a multi-million dollar estate) to be kept from creditors. Shielding an
asset will rarely be fair to a legitimate creditor, but it is legal. Is it right for a judge evade the law to reach
a fair result? I don't think so.
My case involves the exemption for personal injury settlements in North Carolina. Click here for the statute that covers the exemption.
Friday, June 4, 2004
Dealing with bad precedent by expanding it
Fri, June 4, 2004 | link
Wednesday, June 2, 2004
Somebody passed this list out at a seminar a few years ago. It has been in the notebook of cheat sheets I take
to court for years. I don't buy into all of the rules every day, but I think I have agreed with each of them at least
for a little while.
Rule 1: Almost all criminal defendants are, in fact, guilty.
Rule 2: All criminal defense lawyers, prosecutors and judges understand and believe Rule1
Rule 3: It is easier to convict guilty defendants by violating the Constitution than by complying with the Constitution,
and in some cases, it is impossible to convict guilty defendants without violating the Constitution.
Rule 4: Almost all police lie about whether they violated the Constitution in order to convict guilty defendants.
Rule 5: All prosecutors, judges and defense lawyers are aware of Rule 4.
Rule 6: Many prosecutors implicitly encourage police to lie about whether they violated the Constitution in order to
convict guilty defendants.
Rule 7: All judges are aware of Rule 6.
Rule 8: Most trial judges pretend to believe police officers who they know are lying.
Rule 9: All appellate judges are aware of Rule 8, yet many pretend to believe the trial judges who pretend to believe
the lying police officers.
Rule 10: Most judges disbelieve defendants who claim their Constitutional rights have been violated even if they are
telling the truth.
Rule 11: Most judges and prosecutors would not knowingly convict a defendant who they believe to be innocent of the crime
charged (or a closely related crime).
Rule 12: Rule 11 does not apply to members of organized crime, drug dealers, career criminals or potential informers.
Rule 13: Nobody really wants justice.
|
