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Wednesday, September 29, 2004
Required reading
For a very thoughtful critique of the prosecution of the prosecutors who withheld evidence in Alan Gell's death penalty
case (he was acquitted on retrial) click here. The letter has been fairly widely circulated, so I decided to post it.
Tuesday, September 28, 2004
All your cars are belong to us
Cheery news from from your friends in the federal government (motto: we can even make a nightmare out of getting something free)
From CNN
Kick it to the curb
In a Beverly Hillbillies episode, a psychiatrist gives Jethro a Rorschach test, and Jethro identifies every blot as food (hog jowl, collard, sweet potato etc.). I think the faceless entity that the Winston-Salem Journal calls "the city staff" has a mutant variant on the Jethro Syndrome. The cure for every ill is curbside trash pickup.
No matter how many times the issue is voted down, the city trots out the idea for further study. If only lazy Winston-Salem
citizens would take their trash cans to the curb we would all be healthier, wealthier and wiser. I'll bet nothing has been studied as often as curbside versus backyard trash pickup. By now the city staff ought
to be able to put a rolling trash cart in orbit around Neptune. The problem is that having somebody come and get the
cans out of your back yard seems like "Leave it to Beaver" in a "CSI" age. We have a downtown street with free Wi-Fi
internet access that I have never seen anyone use (I'm sure someone has though).
Maybe backyard trash pickup needs a new image, renaming it something like:
- Wireless trash pickup
- Homeland can pickup
- Secure trash service
- Hi-bandwidth refuse removal
- Operation Recycle Bin Laden
Another suggestion:
I like the "Homeland Can Pickup" idea, because it would allow the city to do away with Pick-Up days. Instead, the
guys at city hall could have a snazzy, state-of-the-art color alert system developed that allowed citizens to email or text-message
the department of sanitation with a description of their current trash situation. In that system, when a citizen's trash
can reached Red on the alert scale, a special force of sanitation commandos would swoop in on a a multi-million dollar Blackhawk
trash vehicle, abduct the suspected trash, and stow it away from prying eyes in an Abu Ghraib-type land fill. I like
it; I like it a lot. (From Biff Loman)
Me again: Or maybe even better, the city could start an anonymous tip line, and encourage citizens to go through their
neighbor's trash tell the city if there was anything you know, "suspicious" in there. A sort of Total Trash Awareness.
Tue, September 28, 2004 | link
Monday, September 27, 2004
Explosives and box cutters get past passenger screeners, but we have been 100% effective in eliminating Cat Stevens from the U.S. skies. Maybe Cat Stevens should disguise himself as an explosive device.
Wednesday, September 22, 2004
And now for a word from The Truth*
Next time try saying "objection," or "I hereby give notice of appeal" instead of mooning the judge.
Taking on the felony murder rule
The Southern Pines Pilot takes a critical look at the felony murder rule. Editor Steve Bouser points out that any death that occurs during the
commission of a felony, such as "arson, rape, burglary, robbery or kidnapping" can result in a first-degree murder conviction
punishable by death or life imprisonment without parole. This applies even if the killing was accidental.
I agree with most of the editorial, but describing felonies as "arson, rape, robbery or kidnapping" reflects the old
common-law view that generally defined felonies as only murder, arson, rape, robbery and burglary. Modern state statutes
are chock full of felony offenses. For example, in N.C. stealing pine straw is a felony.
Everyone is a strict constructionist until someone loses an eye
A woman goes to mail a birthday card, but as soon as she pulls the handle on drop box a cloud of fine white powder appears.
What if that is anthrax? Police and hazmat teams arrive and the woman is taken to the emergency room. Testing
shows that the powder is cornstarch that was in envelopes that a woman had mailed to public officials using the return addresses
of some boys she had a grudge against. Her intent was to frame the boys for purpetrating a hoax.
The feds settle on a charge of mailing a threatening communication in violation of 18 USC Sec. 876. It reads:
Whoever knowingly so deposits or causes to be delivered
... any communication ... addressed to any other person and containing any ... threat to injure the person of the addressee
or of another, shall be fined under this title or imprisoned not more than five years, or both.
Is the cornstarch hoaxster guilty of sending a communication containing a threat? Assume several things are givens:
- There was a genuine fear that the material was anthrax or some kind of poison,
- The hoax caused a lot of expense and inconvenience to the community,
- There was no writing or material in the evelopes other than cornstarch,
- None of the intended addressees received or knew of the mailings before they were intercepted (the statute does not require
that the target actually receive it, only that it be mailed.)
The court has several options:
- Rule that an envelope with cornstarch is not a "communication."
- Apply the rule of lenity (that criminal statutes should be construed narrowly and against the government) and rule that
while the action was taken with the intent to cause harm, it was not a threat to inflict harm in the future.
- Apply to rule of levity (the accused has acted wrongly so stretch to interpret the language in a way that would laughable
in a non-criminal context) and rule that tricking someone into thinking they have been infected is a threat.
See what option the Third Circuit chose. More comment from a Volokh Conspirator.
Tuesday, September 21, 2004
We need no stinking evidence
A friend told me a story years ago about an interview to be an assistant DA. The DA asked the applicant if he could
win convictions. The hopeful job hunter said that with the right evidence he was sure he could win convictions.
The DA replied, "anybody can get convictions if they have evidence, I need DA's who can get convictions even when
they don't have evidence."
I thought of this story when I heard that the State Bar is holding hearings about two prosecutors in the Alan Gell trial. Gell was once sentenced to death but later acquitted
on retrial after evidence that state's lawyers withheld at the first trial was turned over to the defense attorneys. ( Full story in the N&O).
One of the former prosecutors works as a public defender now. The other is a top administrator in the state court
system.
Simplify, shmiplify
I heard one of the candidates this morning issuing the perennial promise to simplify the tax code. There is nothing
as certain as this: the government will never simplify the tax code. Ever. That would be like
expecting the sun to shine cold. Government abhors a regulatory vacuum.
Nothing illustrates this better than the presidential debates. According to NPR, a 32-page memorandum (negotiated by lawyers for both campaigns) sets the rules for the three debates. It
bans props and requires each candidate to submit paper and pens in advance. That memorandum is almost three times as
long as the 1996 debate understanding memo. (I could not find a copy of the current memo online, but the 1996 memo is here.) This crowd will never simplify anything.
On the way to looking some of this up I found a site on the Lincoln-Douglas debates that is worth look. I found this line from Stephen Douglas in the first debate after he was interrupted by applause
for the second time:
My friends, silence will be more acceptable to me
in the discussion of these questions than applause. I desire to address myself to your judgment, your understanding, and your
consciences, and not to your passions or your enthusiasm.
Can you imagine a candidate saying that today?
Monday, September 20, 2004
Bad air day
The Triad Haze Cam is a great way to illustrate air quality. The pictures today with the clear weather were pretty cool.
Friday, September 17, 2004
Time to shine
Fri, September 17, 2004 | link
Everyone wants underdog status, at least according to John Feinstein on NPR. His point was that the European Ryder Cup teams have been successful even though the U.S. team is stocked with golf
powerhouses, because being the underdog makes them try harder. I say, speak for yourself, Mr. Feinstein. As a criminal defense attorney I am always the underdog, and I would
prefer to be the Dream Team for a change. I think it would be great to stride into court with superior resources and
talent and dominate a trial like Barry Scheck on Dennis Fung.
Believe me, underdog is overrated.
Fri, September 17, 2004 | link
Wednesday, September 15, 2004
Your tax dollars at work (or not)
A call yesterday from a government official:
Gov't: "I recieved the fax you sent yesterday, but it is so faint I can't even read it."
Me: "OK, I'll be happy to fax it again."
Gov't: "No. You need to bring it to my office in person. But to get to my office on the 7th floor, you
first need to go to the 5th floor, have them call me and then bring it to me on the 7th floor."
Now let's go to tape: Because a government office cannot afford a working fax machine someone (me) will have
to pay me to walk five blocks to personally deliver a two-page document. At my bargain hourly rate of $65 this will
cost the state (this is a court-appointed case) $37.50. How many times does this need to happen before it becomes cost
effective to fix the fax?
A plan so crazy it just might work
Why not just let the federal government file a statement that says "the secret law may or may not exist, but if it did
exist we could give you some very good reasons why it was neccessary, but if we told you what those reasons were, we would
have to kill you."
The plaintiff in Gilmore v. Ashcroft is either a nut or more sane than any other person in the country.
The Majesty of the Law
It is not a crime (for now anyway) to leave a small tip at a restaurant. Theft of services charged were dismissed
after a diner was arrested after leaving a 12% tip instead of the 18% gratuity printed on the menu. ( Channel 3000.com)
However, snatching another customer's hairpiece will lead to 23 months probation, a $500 fine and having to write a letter
of apology. ( WAVY.com)
Tuesday, September 14, 2004
Disorder in the court
Tue, September 14, 2004 | link
Monday, September 13, 2004
But I do know some who will gnaw persistently on your ankle
I got an e-mail from somone today who was looking for a lawyer who is a "real junk yard dog and not afraid to go for
the juggler."
Mon, September 13, 2004 | link
It is soooo over
A primer on when the relationship is over. My favorite "You feel like you are in a French film."
Calling Alexander Haig
"When trouble arises and things look bad, there is always one individual who perceives a solution
and is willing to take command. Very often, that individual is crazy." ---Dave Barry
Friday, September 10, 2004
I'd like to thank the Commission ...
Wake County Judge Evelyn Hill has gotten a second censure from the N.C. Judicial Standards Commission. This time
it was for calling a black lawyer "a token" and telling a lawyer to "use his big boy voice" in front of a jury. ( Story from Raleigh N&0). The first censure was for a groping incident that she says was intended as a joke. It also included the line
"It's been a while since I shoved a male's balls through his nose holes." Copy of record here.
I've never appeared in front of her but I have heard lots of stories second-hand.
Wednesday, September 8, 2004
You'll get this bra when you unhook it from my cold, dead breasts
"He told me they were offensive and a
public nuisance, and he was going to prosecute me," Cooper said. "He refused to listen to me, so I said I was going to talk
to someone important."
Wed, September 8, 2004 | link
Thursday, September 2, 2004
Follow your nose, it always knows
Conjure up the aroma of a school cafeteria on a hot day where canned corn is on the menu.
Add a strong top note of sweat. Blend that with an undercurrent that combines
Lysol and PineSol. You are now smelling the High Point Jail.
Wednesday, September 1, 2004
You're fired
I got a call from a from a guy about a case he has coming up. I had been appointed to represent him on a very routine
case that had been disposed of. He asked me if I could represent him on another pending charge. He said he fired
the appointed lawyer on that case because "he was more concerned with what I was wearing, than the case." He thought
I could do a better job.
I told him I probably couldn't improve on that lawyer's performance because I was the lawyer he fired. After
he fired me, I was appointed to represent him on a later charge.
Wed, September 1, 2004 | link
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