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Friday, July 30, 2004
That kind of elitist
This is supposed to be me:
From Timbuktu to Tijuana, you know all about world
culture and politics. You've seen it all, and
what you haven't
seen, you watched on one of
the "smart people channels." Your
friends tell you that you should run for
governor.
What people love: You've always got a great story
to tell. What people hate: You make them feel like ignorant
plebians.
Sometimes you slip and CALL them
plebians.
What Kind of Elitist Are You?
brought to you by Quizilla
I do like "the smart people channels" (except C-Span).
Dropping the BOMTAE bomb
Phrases are born in court opinions and then bastardized by cops, courtroom lawyers, prosecutors and judges. One that I
have been annoyed with lately is the cop-speak “based on my training and experience.” I hear and read it often enough that
it needs an acronym like BOMTEA. It is used like this:
- “I saw two black males engaged in conversation and exchange and BOMTAE I determined that they were engaged in a drug transaction.”
- “I saw a shoebox containing currency banded in groups of $1000 and BOMTAE it was consistent with an operation to launder
drug proceeds.”
- “There were several TV’s and two laptops in the basement and BOMTAE, I believed they were stolen.”
The words are spoken or used like some kind of talisman. Really the phrase means “I am a law enforcement officer and we just know,” and it sounds better than “I assumed.”
It is usually delivered with a sort of stilted wooden delivery. I know a prosecutor who loves the phrase so much that he can't
wait for the witness to deliver it that he works it into each question, as in "Well then officer what did your training and
experience tell was going on?"
Now each of the situations I set out might be some indication that something wasn’t right, but sticking BOMTAE in
there should not be a substitute for looking at the facts to see what a reasonable person might conclude. Two black guys engaging
in conversation and passing something between them could be a drug sale, but it could also be a lot of other things. A box
of cash could be drug proceeds or somebody’s savings to buy a car. Multiple TVs and laptops could be stolen or a yard sale.
This phrase thing reminds me of what I heard from a doctor about the term “WNL” that shows up on patient charts. Officially
it means “within normal limits,” but unofficially it means “we never looked.” If the hunch is not enough for action, dressing
it up in a suit of BOMTAE shouldn’t make it welcome in court.
Thursday, July 29, 2004
Not in Alabama you won't
The court agreed with the state that at the sex-toy sale ban is "a time-honored use of state police power—restricting
the sale of sex."
The law bans the sale of "any device designed or marketed as useful primarily for the stimulation of human genital organs
for any thing of pecuniary value." Possession and use are not affected.
I love the the exception in the statute, which allows sales provided there is:
"a bona fide medical, scientific, educational, legislative, judicial, or
law enforcement purpose.”
The court points out that the targeted devices include vibrators, dildos, anal beads and artificial vaginas so
I'm wondering how those devices would be useful in legislative or judicial activities.
Thu, July 29, 2004 | link
Wednesday, July 28, 2004
City confidential
Imagine this conversation:
Reporter: Mr. City Manager, the city just laid off cut 18 positions and laid off 8 employees.
Who was laid off?
City Manager: That is not public record.
Reporter: How many of the eliminated positions were vacant?
CM: That is not public record.
Reporter: Saying "that is not public record" is not a reason for refusing to provide information
about about public employees who have been let go. "That is not public record" just states your position that you are
not legally obligated to release the information. Why should the public be kept in the dark about which employees have
been laid off?
CM: Land Shark ...
Reporter: What? Aren't you actually saying that you have chosen not to reveal the information?
CM: Candy Gram ...
Reporter: What possible legitimate reason could there be for not telling taxpayers who got the ax?
CM (cue cheezy smoke effects): I am Oz, pay no attention to that man behind the curtain...
That scene occurred to me after I read in today's Winston-Salem Journal that the city manager, Bill Stuart, has chosen who will no longer have a job with the city. Hearing the "it's not public
record" from a public servant always irks me. "It's not public record" just states a legal conclusion. It may
not even be a sound legal conclusion. What the servant is really saying is: I believe I am not required to tell
you so I am refusing to tell you because it furthers my agenda. Government entities are instinctively secretive, no
matter what it seems the law is, office policy is always "we reveal only what we have to and even then we do it begrudgingly."
That policy does not apply when the news is helpful (even if non-public). Then its time for a news conference and live
remote. Years ago before the WWF ruined wresting, I saw a film clip of Ivan and Nikita Koloff's secret underground workout bunker
that began with Ivan Koloff growling, "during film you will see only what Kremlin want you to see." So now the same
attitude displayed by big guys with fake Russian accents who pretended to support the now defunct Soviet Union, has gained
new life as the official public policy of City Hall in Winston-Salem. Imagine the city manager in a wrestling singlet
with the Winston-Salem city seal on it, growling, "you will see only what City Hall South wants you to see." OK now
blot that picture from your mind, it is just too disturbing.
Back to my point though. It is easy to guess the real reason to not reveal what positions are getting the ax.
The city does not want to hear complaints from folks who would urge that those positions be kept. If you don't know
whether it was cops or sanitation workers who lost out, you can't call the city and complain. The city does not
want to reveal how many of the positions are vacant, because cutting vacant positions and talking about savings is on page
1 of "Political Shenanigans for Dummies."
Wed, July 28, 2004 | link
Monday, July 26, 2004
Mountain musings
Early morning ritual on Roan Mountain:
1. Wake up.
2. Stretch.
3. Admire 360-degree view.
I've camped up there before and I have no room for a laptop or anything else to keep me connected to "the world."
I like the feeling of inaccessibility.
Mon, July 26, 2004 | link
Thursday, July 22, 2004
Thu, July 22, 2004 | link
Propriety proponents press to pull pit bull
Some Florida lawyers are trying to get the state bar to send the Pape & Chandler pit bull to the pound. The two-lawyer firm uses the pit bull logo and the number 1-800-PIT-BULL phone number to advertise
its practice, which focuses on representing injured motorcyclists. A Florida bar staffer said the ad
"is not objectively relevant because it is not informational and it is manipulative
because it appeals to the emotions of the consumer, as the pit bull is commonly perceived as aggressive, unrelenting, loyal
and determined."
How stupid does the Florida bar thinks the public is? Lots of people want aggressive, unrelenting, loyal and determined
attorneys. No one is fooled into thinking they will be represented by an actual pit bull. There is a term
for advertising that does not appeal to emotions: boring and ineffective.
I would not use this kind of ad because it is too goofy for me. Also, clients who mention "aggressive" in
the first minutes of meeting a lawyer often really mean "someone who will pummel the other side regardless of legal merits
of the case." Historically I have not gotten along well with those kinds of clients. But it is a huge stretch
to say that this advertising is manipulative.
A local firm in my town uses a bulldog in a lot of its advertising.
The firm, Womble, Carlyle, Sandridge and Rice, has a practice similar to mine except that it has 449 more lawyers and they do not have clients who wear "wife-beaters"
during meetings with the attorneys. No one seems to have complained about the bulldog.
I'd like to use my dogs in advertising, but I own pugs, "a breed commonly associated with eating, panting and sleeping
on the couch." Even though I have a more laid-back approach to law than the pit bull guys, nobody would hire a lawyer
whose chief qualities are eating, panting and sleeping.
Anyway, here are the dogs:
They are more interested in licking than litigating.
Thu, July 22, 2004 | link
Tuesday, July 20, 2004
Clash over cash
A lawyer in Raleigh is drawing fire ( from the N&O) for making more in one year in court-appointed work, $137,505, than then chief justice. The chief justice is
paid $135,404 per year. At the court-appointed rate of $65 per hour that comes to about 2115 hours, which is high, but not out of reach for a
diligent lawyer. The lawyer involved said $20,000 - $30,000 of the fees were for work done the year before, so that
would take away some from the year's hour load.
It's not fair though to compare fees income with someone's salary. The chief justice took in less, but he does
not pay office rent, the salaries of his law clerks and secretary, phone bills or library expenses out of his pocket.
Believe me, those things are costly.
The statistics are used to justify establishing a public defender office in Wake County, which the local lawyers have
opposed successfully in the past. The article mentions that the fees earned were from juvenile cases, parental neglect/abuse
cases and low-level crimes. I'll bet most of the fees were from juvenile and neglect/abuse cases. Few lawyers will
take those cases so often a few lawyers in the county handle the entire load. Most public defender offices do not handle
juvenile or parental neglect/abuse cases, so even with a PD office, those cases would still go to private counsel.
Monday, July 19, 2004
A Constitutional inconvenience
When a law enforcement officer pulls a driver over for a minor traffic violation (such as a broken taillight) but the
real motivation is drug interdiction, it is known as a "pretext stop." This means that the officer has no interest in
enforcing traffic laws, but is using the violation as an excuse or "pretext" to pull you over. Pretext is defined as:
Ostensible reason or motive assigned or assumed as a color or cover for the real
reason or motive (more definitions)
Several years ago lawyers argued that "pretext stops" were unconstitutional. The Supreme Court, while acknowledging
that there is a "temptation to use traffic stops as a means of investigating other law violations,
as to which no probable cause or even articulable suspicion exists," ruled that pretextual stops are not unconstitutional
in United States v. Whren in 1996. Back in April a quote caught my eye when the Winston-Salem Journal wrote about the Forsyth County Sheriff's Department
patrols on I-40 through Forsyth County. A deputy on the force said:
"You have to stay within the pretext of your stop," he said. "If I stop this
person for a lane violation or for following too closely, you have to take care of that business." ... "You're stopping the
unknown.You don't know what you're going to encounter on a vehicle stop. I always want to catch a bank robber - you think
about those things all the time." (the article is no longer available for free on the website)
What I don't like about this kind of reasoning is how it treats the Constitution as some sort of petty obstacle that
needs to be circumvented, rather than something that protects citizens from arbitrary government intrusion. Further
muddying the water is that fact that the Sheriff's Department itself gets 80% of any cash seized, making this operation a
potential cash cow.
Mon, July 19, 2004 | link
Friday, July 9, 2004
Don't do the acts if you can't pay the tax
"There will be no fine; there will be a court case and the whole nine yards.
... The case has gotten a lot of publicity, and there are probably a lot of lawyers who want this case."
Tommy Hol Ellingsen
Don't give him my card, I have a busy week or two ahead.
Fri, July 9, 2004 | link
Wednesday, July 7, 2004
First, Janet Jackson
I guess they won't try the "wardrobe malfunction" schtick.
Wed, July 7, 2004 | link
The mind reels
Analog tapes may be extinct in five years. According to an NPR story, they are already getting hard to find. This story reminded me about a case I had years ago. I had recently started in private practice and a judge's office called about appointing me to a "2255." In federal
terminology a "2255" means a federal prisoner is collaterally attacking his conviction, usually over a constitutional
violation. These cases are the bane of the federal criminal justice system. The overwhelming majority of them
are dismissed. Courts and judges hate dealing with them.
I accepted the case, but was not hopeful. The case was a failure to appeal claim. My client said his trial
attorney had not appealed his case. Failure to appeal cases usually boil down to a swearing contest between the client,
who says he told the attorney to appeal, and the lawyer, who denies it. The attorney is usually more believable because
there is little reason not to appeal if the client asks. Failure to appeal after your client has requested it is considered
classic ineffective assistance of counel, and entitles the client to have the appeal re-instated.
In this case there was a trial, which was a little unusual because often appeals follow trials in criminal cases.
The defendant has little to lose by appealing, and the court will appoint an attorney if he cannot afford one. Also
the trial attorney had filed a notice of appeal, but never filed a brief or moved to withdraw in favor of court-appointed
counsel. The appeal was eventually dismissed. The second fact especially seemed to support my client's claim
that the dismissal was not his fault. His trial attorney lived in Florida, so I could not subpeona the attorney for
the hearing. The government stuck to its guns that he was not entitled to an appeal, so I had to fly to Miami to take
the attorney's deposition. The government did not even bother to send anyone. The appeal was reinstated (i.e.
we won) and I now had to handle the appeal of a trial that occurred about 4 years earlier.
The court had lost the original trial transcript, so a new one had to be prepared from the court reporter's tapes.
The court reporter, who had died, used an ancient reel-to-reel tape recorder, while just about everyone else used cassettes.
The tape was stored in some federal vault in Texas. Eventually it was retrieved and delivered to another court reporter
for transcription. She had a difficult time even finding a machine that would play it. It took another 6-8 months
to get the transcript.
It turns out there was one issue on appeal that resulted in a remand, which took about a year off my client's sentence.
Probably before too long CD's and DVD's will seem like some quaint old technology.
Wed, July 7, 2004 | link
Riot act
I was wondering what to wear to my next riot. I hate showing up in a brand-new helmet looking like some kind of newbie.
Thursday, July 1, 2004
Judge D. Brock Hornby, a federal judge in Maine, has ruled that the Blakely case means that a large part of the Federal Sentencing Guidelines are unconstitutional.
Make a deal
"Anyone who runs is a V.C., anyone who stands still is a well-disciplined V.C."
Doorgunner in "Full Metal Jacket"
A Winston-Salem man who faced a possible 15 years in prison on drug-trafficking
charges reached a plea agreement with prosecutors yesterday after he told jurors that he was manipulated by an acquaintance
into unknowingly participating in a drug deal.
Prosecutors, who had seen the same defense work six months before, said they didn't
want to take the chance that it would work again.
"We don't want this to be an effective defense," District Attorney Tom Keith said.
"We know now that this is in the popular mythology. We will train law officers to do things which will pre-empt their ability
to use this defense."
Under the plea agreement, Ruben Rodriguez, 21, will serve a maximum of seven years
in exchange for agreeing to provide "substantial assistance" to investigators and testify against the man who he said set
him up. That man, whose whereabouts are uncertain, has never been charged.
This is classic DA-speak, essentially saying there are only two kinds of people in court -- those who admit guilt
and those who falsely claim to be innocent. The defendant in this case told the jury that he was innocent. The
DA did not believe that testimony and bargained for a guilty plea. However the agreement calls for him to provide "substantial
assistance" to implicate someone else. The same guy who is not believable at his own trial could be put on the stand
to send someone else to jail. "I didn't do it" is "mythology," while "some other dude did it" is gospel.
I'm never comfortable with snitch cases. Plea agreements about testimony generally require "truthful" testimony.
But any potential informant knows that whatever he says has to incriminate someone or the state wouldn't be interested in
it.
Would I do anything differently than the defense attorney in that case? No. My job is look out for
his interests, not the guy he might finger.
Thu, July 1, 2004 | link
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