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Thursday, October 28, 2004
Sometimes the camera has to blink
Russian athlete (in department store): "I defect"
Russian handler: "He can't defect."
Nearby New York City cop: "This is America, he can do anything he wants."
Thu, October 28, 2004 | link
Pipe dreams
An early lesson in "Nobody Beats The Man" came right after I got my first car and soon after had to purchase my first
muffler. Years of public-service announcements and consumer affairs progamming taught me to shop around and be wary
because car repair is fertile ground for rip-offs. I located a muffler for "$49.95 installed." I quizzed "Mr.
Muffler" (motto: No Muff Too Tough) exstensively about the true cost of the $49.95 muffler and the lifetime guarantee.
It looked iron-clad to me.
I was chagrinned when I went to collect my muffler and attached car to discover that the bill was $156.50. How
could this be? Mr. Muffler grunted one word: "Pipe." My car needed pipe, which is not part of the muffler.
Pipe is also made of some material (titanium maybe?) that is considerably more costly than the crude base metals employed
in muffler fabrication.
A second disillusionment occurred years later when I came for my free replacement. I ran headlong into the
First Law of Mufflodynamics: "The guarantee does not cover pipe." Also Mr. Mufflers Corollary to the First Law: "All
replacements will require copious lengths of pipe."
Over the years my resentment and bitterness over this stewed into a bitter bile. However I came to appreciate the
simple beauty and elegance of this institutionalized ripoff. I even drew solace from the misery of others as I watched
other idealistic young men march into the muffler shop $49.95 (exact change) in hand, only to see their dreams crushed under
a pile of pipe. I would sit in the muffler shop customer lounge near the ancient TV with tinfoil-clad antenne, styrofoam
cup of coffee in my hand and say, "Son, I was like you once ...."
Mr. Muffler will have to surrender his sooty throne, for I have now seen the future and it is Mr. Mortgage. I thought
I had been ripped off in every imaginable way, but then I discovered "Mortgage Broker Fee," "Processing Fee," "Service Fee,"
"Underwriting Fee," et al. Each name is just generic enough to let you know that you are really paying something for
nothing, but specific enough that a fast-talking banker can come up with some barely plausible explanation of what it is for.
The bitter taste of this ripoff is certain to linger for 30 years or at least until I am in the mortgage lenders customer
lounge styrofoam cup in hand saying "Son, I was like you once ...."
Tuesday, October 26, 2004
Bag boys, bag boys whatcha gonna do ...
Boston Globe reporters (and a photographer) tailed the U.S. Marshal for Massachusettes for a few days and found that did some daytime grocery shopping
and rarely puts in a full 8 hours. Marshals are appointed by the president.
Tue, October 26, 2004 | link
Bathroom graffiti
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If voting could really change things,
it would be illegal.
Revolution Books
New York, New York. |
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And
here I was feeling good about voting yesterday.
Tue, October 26, 2004 | link
Just a thyroid away from the chief slot?
Chief Justice Rehnquist's illness has started me thinking about who would be the next chief if he steps down. A
lot of this might be pointless because there seems to be a tradition of justices doggedly hanging on to the post.
The only exception I can remember is during my lifetime is Lewis Powell. Powell stepped down but spent a while sitting
by designation on federal circuit courts. Most others have stayed until they were near death.
Assuming President Bush gets to appoint a successor, I wonder if he would appoint either of his most admired Justices,
Scalia or Thomas, to the top spot and fill the associate justice spot with someone from his short list. If Scalia were
to become the chief I think he would face some obstacles in being one of the great chiefs, even though his legal skills are formidable. As a dissenter he has often been shrill, when in the majority he
tends to gloat. Much of the chief justice's power comes from crafting majorities and persuading other justices because
the chief still gets only one vote. Warren Burger was not very effective as chief justice because his management and
people skills were not strong. At a law firm the best litigator might not be the best choice for managing partner because
of the different skill set. Nominating Thomas has the advantage of allowing the President to nominate the First Black Chief Justice (FBCJ).
Since Thomas is more low key he might be a more effective leader. However the confirmation would certainly resurrect
the Pubic-Hair-Coke Can-Porn-gate.
For whoever becomes chief I have one suggestion. I have been to the Supreme Court twice and argued there once.
By "been there" I mean I was "permitted inside". By "argued there" I mean "a spirited debate with the gift store clerk
over the price of a miniature gavel."
The second time I went to the court I sat in the section reserved for attorneys. The chairs there are narrower
than the backsides of 80% of the attorneys I know. We nearly had to invoke the one man, one cheek rule. We
grumbled enough that a marshal gave us a stern look. So whoever becomes chief, please, provide rest for the reary, get
wider chairs.
Tue, October 26, 2004 | link
Monday, October 25, 2004
A reminder that dogs are the best things in the world (this is from a friend who lost his dog)
The Airedale Terrier member of our family, Shamrock, died suddenly on Saturday, 16 October. As he was adopted, we know
only that he was at least 13 years old and had been in apparent good health. He came to live with us after his previous owners
had given up on him as too dumb or too difficult or too mean, his most recent owner having decided to kill him. Although I
do not particularly like Terriers and their approach to life, we took Shamrock in rather than permit him to be destroyed.
He
had spent the first few years of his life running at large in our rural foxhunting neighborhood and always seemed to have
an abundance of ticks and burrs in his coat. He would follow when the hunters or trailriders would exercise their mounts,
ignoring their scorn and occasional abuse, running tirelessly with them until they returned to the stable. He jockeyed for
a share of kibble from the common food bowl in the barn, drank water were he found it and slept where he could. He was matted
and infested and lean and fit. He was a large headed, large pawed, stout dog with an unknowable eye and a large bluish nose
and was arthritic by the time he was a young adult.
He adapted easily to living with us these past seven or so years,
and never seemed to care to return to his previous haunts. He could climb a farm fence or dig a bed under a shrub in the blink
of an eye. His gait was a gambol and his play bow was unique. He was a tireless defender of the realm, warning intruders away
with his distinctive bark. A special sense revealed only to him intruders and haints the rest of us could not detect, and
he was ferocious in his defense against them. His favorite toy was whatever stick he discovered, tossed in the air and then
pounced on, repeatedly. He was a willing student and quickly learned all that was asked of him. He was indifferent to other
dogs and rarely interacted with them, but he formed an aloof, special bond with Jesse. His indifference extended to the weather,
true, I suppose, to his Highland heritage. Rain, hail, snow or mud, he could and did nap and patrol in it all day, but was
always happy to come inside to be toweled off before his bedtime meal. He was not particularly affectionate, but always greeted
me enthusiastically, would sometimes solicit a head scratch and always enjoyed body rubs, brushings and even baths. When I
was away from home, he would sit by the gate all evening, watching down the driveway for my return, abandoning his post only
when he was called in for the night.
All the human ladies loved Shamrock. He loved going for rides and when he was
out with the family, strangers would always gravitate to Shamrock, almost ignoring the Collies and instead, fussing over Shamrock
and telling him how cute he was. I do not remember him ever being rude to a stranger in these circumstances.
He seemed
to truly appreciate having a home and his own food bowl and bed. His self assigned household defense napping spot was on the
rug inside the back door, which is where I found him Saturday. As one vet said, by dying on his own terms, Shamrock granted
me the greatest gift a dog is capable of: saving me from ever having to decide to put him down.
Shamrock was not a
great dog or particularly a good dog, but he was a devoted dog. He certainly loved me. And he never left me with any doubt
about it. We will miss him.
Tuesday, October 19, 2004
From "Ooh!" to "Eww!"
Tue, October 19, 2004 | link
Friday, October 15, 2004
Law enforcement career ends with bang
"I'm
tired of looking like a big old drunk whaling my gun around and I'm not," he said.
But he was drinking. And his gun did go off. Hitting him. And another woman.
And he was celebrating finishing rookie school. And yes, he was fired.
Give it up for Old Grandad
I think there are two parallel governments operating in our society. Not state and federal, though. There
is the "Dad government" and the "Granddad government." The "Dad government" is the one that never has any money.
There is no money for road repair, health care, teachers, police, or to pay court-appointed attorneys. I deal with the "dad government" every day. About five years ago I got to travel to Miami for a court-appointed
case to depose a witness. There was a fair amount of red tape I had to navigate and page after page of warnings and
rules that boiled down to: you must stay only in a crappy hotel (HoJo), use only the crappiest rental car (Geo), and would
not get reimbursed more than $6 per meal. During one evening meal at Denny's I ordered a beer to wash down my skillet
dinner This meant I had to give up reimbursement because the government never, ever pays for alcohol. During my brief stint as a government employee I remember getting billed $12 for the employee appreciation lunch
because regulations prohibited government money being spent on such frivolities.
This is classic "father government" it begrudges every cent it gives up and usually requires enduring a story about walking
miles to school in bare feet first.
All my life though, I have heard of the "granddad government." "Granddad government's" only goal is to spoil the
children. It spends $462,000 on a Washington party for the Transportation Security Agency. It pays $64 for a gallon of coffee and $1400 for balloon
arches. When grandad government is chastized for its lavishness it has a spokesman say the expenses "were fully
justified," but the party will be "much smaller and less expensive next year." You are not supposed to notice that the
spokesman has the same name as a former powerful senator. Granddad government leases Cadillac Escalades and pays country club dues, because no self respecting deputy assistant vice chancellor should have to drive honored guests
to Denny's in a Geo. I've had enough of "dad government" with the tales of no paper for the photocopier which is just as well because the
copier is broken anyway. I want to spend a few weeks with "Granddad government."
(With apologies to Bill Cosby for stealing his routine about how shocked he was to see his see his father, a man who
never gave up money without a story, shower the grandkids with money)
Don't call me
I once ran across a public defender who had a policy of refusing to talk with client's family members. At the time
I thought it was a little harsh. These days I think I was a little hasty in that judgment.
Blonde Justice has post about meddling family members that rings true to me. More often than not wives, girlfriends, baby mommas, and mothers are out there urging my
client to go to trial absolutely against my advice. For some reason, the meddlers have always been women in my cases.
I still talk with the family if it is OK with the client, but I have put some client's family members on my Do Not Call
list when they start to interfere.
Wednesday, October 13, 2004
Take your time
"Legal fictions" are devices the law uses to pretend that something exists when the facts show it does not. Mostly
modern courts have rejected them because they elevate form over substance. There is a particular tasty legal fiction
we still indulge in today: that a criminal defendant cannot receive a harsher sentence simply because he insists on going
to trial. The fact behind the fiction, a defendant who chooses a trial will almost certainly be worse off than one who
pleads guilty.
A recent North Carolina case ( State v. Young) shows what happens when a judge slips up and tells the truth. In the case two men were facing felony charges for marijuana
sales. Before trial the judge said this:
Now, [Mr. Young], if you pled straight up, I know the State is not going to offer
you any pleas, but if you pled straight up I'd sentence you at the bottom of the mitigated range. But that's -- that's
about as good as we can get with these habitual felons. . . .
Now, if you go to trial and he's convicted, I'll be perfectly honest with
you, I'm not going to sentence him -- I doubt I would sentence him in the aggravated range. I may, but it just depends upon
how bad it is, but he definitely would probably get a sentence in the -- he would definitely get a sentence in the presumptive
range. I probably wouldn't go back to the mitigated range since I'm offering this now prior to trial, but I'll let you think
about it, unless you already know that he's not interested in it.
Mr. Young, who as a habitual felon was facing a few years in prison, decided to go to trial. His co-defendant was
found not guilty, but Young was convicted. At sentencing the judge said:
All right. [Defense counsel], you care to be heard on behalf of your client?
I believe I previously indicated what the Court's position would be at sentencing, but I'll still consider whatever you have
to say.
Young got a minimum of 96 months in prison. Bottom of the mitigated range would have been 70 months.
The Court of Appeals ruled that the judge's comments showed that he was increasing the sentence because Young decided
to go to trial.
The ruling will either cause judges to set aside trial vs plea when it comes to sentencing or remain silent on their
motives for a particular sentence. This puts me in a strange position when counseling clients.
- The idealist "true believer" lawyer in me wants to say: Our Constitution guarantees that your decision to go to
trial cannot be used to give you more time. (I was an idealistic true believer for about the first 2 days in practice).
- The bitter realist needs to say: Constitution be damned, if you go to trial and lose you'll pay for it by serving
more time.
In some ways it is a shame the judge got reversed, even though the law is clearly against him. He was just being
straight with the defendant. I have been in front of that judge a few times. I know that I've had clients plead
guilty after hearing that speech. This judge just screwed up by telling the truth.
Friday, October 8, 2004
Take your hand off the underwear and move slowly away
"It's unfortunate ... It was an isolated incident. It was immediately dealt with."
Apparently, Wisconsin frowns on wedgies because the boy now faces fourth-degree sexual assault charges.
Good thing for the lad it was not an "atomic wedgie."
Fri, October 8, 2004 | link
Tuesday, October 5, 2004
It is a familiar tactic to frame your opponent's argument in flawed terms, knock that argument down and claim victory.
That is exactly what Justice Scalia did at a Harvard gig recently, when a student asked him if being stopped for "driving while black," violated the Fourth Amendment. Scalia replied:
"What the Fourth Amendment prohibits
is ‘unnecessary’ search and seizure. Is it racial profiling prohibited by the Fourth Amendment for the police to go looking
for a white man with blue eyes? Do you want to stop little old ladies with tennis shoes?"
I've never heard anyone suggest that it is racial profiling to look for a black, hispanic or
white suspect if there is a description. If the student thought like an appellate judge, he could have followed up by
demanding a response to the question he asked. Whether it is OK to stop a member of a group based on an assumption that
a member of that group is more likely than average to be involved in something illegal, when there is no identifiable suspect.
This can occur in a number or scenarios:
- Airport screeners focusing on those with an Arab appearance based on the assumption that airlines have
been targeted by Arab extremists.
- A state trooper who pulls mostly Hispanic drivers after seeing a minor traffic violation (a pretext
to check for DWIs), based on his belief that Hispanic drivers are more likely to drive while impaired.
- An officer pulling over whites in a predominately black area using pretext stops based on his belief
the only reason a white person would be in that area would be to buy drugs.
- A sheriff's department using pretext stops to pull over black driver's on the interstate believing
that black drivers are more likely to be transporting drugs.
Those situations are racial profiling and the Justice owed an honest answer, either that some or all
of the above scenes are constitutional or not. Instead Scalia proved that a Supreme Court Justice with years of experience
under his belt has greater rhetorical skills than a graduate student.
We also learned how lifetime tenure loosens the tongue. At one point Scalia quipped:
“I even take the position
that sexual orgies eliminate social tensions and ought to be encouraged.”
He'll never get to be Surgeon General talking like that.
The Truth* about the funnyman.
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