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Thursday, September 29, 2005
Anyone wearing jeans, tennis shoes and a button-down is obviously a drug dealer
A judge holds a Greenville N.C. defense attorney in contempt after the judge summarily increased his client's bond based in the correlation between jeans, button-down shirts, tennis shoes and drugs. According to lawyer Roddy Brown's
law partner, the judge, W. Russell Duke, has refused to enter a notice of appeal filed on Brown's behalf and stonewalled an assistant federal public defender
who contacted him about the case.
Monday, September 26, 2005
It depends of the definition of "indigent"
I've always figured that once the I got appointed to a case the indigency issue was decided, but Larry Lintner seems
like an unusual case. Of course if he were convicted he would have to reimburse the state for the cost of his representation.
Mon, September 26, 2005 | link
Friday, September 23, 2005
I'm Gonna Git You Googled
Attention Google searcher using term "takin it to the man":
You have come to the right place. My fee for "takin it to the man" is $20,000. I'll need it in advance.
"Takin it to the man, just one more time" will run you about $10,000.
Don't fire until you see the white of his collar
It's as though the feds totally ignored the fact that he is an accused white collar criminal and treated him
like any other accused.
Fri, September 23, 2005 | link
Wednesday, September 21, 2005
But there's health coverage and a dental plan
Government lawyers rarely have the ability to grant freedom, but they frequently have the
power to take it away. There is genuine danger in the power to drastically change people's lives with the flick of a pin or
a few taps on your keyboard. Don't forget that power corrupts even those who begin with the best of intentions. Of course
you have some great ideas about how to improve the world, and wouldn't it be great if you could just use a bit of government
muscle to make the world just a little better? Sure, until some poor schmucks are shot or thrown in jail for defending their
rights against your paternalistic intrusion into their lives -- but hey, you can't make an omelet without breaking a few eggs,
right?
A frequent objection to working at a law firm is that few people come to law school to help feed the maw of
an oppressive corporate behemoth. But imagine working for a rights-violating corporate behemoth that also holds a monopoly
on the use of violence to achieve its goals and frequently works to further the agendas of other corporate behemoths at the
expense of its own shareholder-citizens -- that, my friends, is the career of a government shill, errr...lawyer.
Wed, September 21, 2005 | link
Thursday, September 15, 2005
Sheriff pockets warrants
The Sheriff of Davie County "pulled" a warrant and deliberately failed to serve it, says the Winston-Salem Journal, in a story about an SBI investigation of the sheriff's office.
One issue at the heart of the investigation involves two disputed arrest warrants
that were issued June 16 for a person suspected of impersonating a sheriff's deputy. The person was never arrested because
Sheriff Allen Whitaker immediately took possession of the warrants, an unusual move.
Whitaker said he pulled the warrants because they contained errors, but he would
not say what the errors were or why they have not been corrected three months later.
According to sources close to the sheriff's office, Whitaker tried to conceal
the warrants because the suspect had personal ties to people in the department, including the chief of enforcement, Lt. Jimmy
Phipps.
That may not seem so odd until you understand what a warrant actually is. It is a court order issued by
a magistrate ordering a law enforcement officers to take a person into custody. The standard language in N.C. warrants reads:
To any officer with authority and jurisdiction to execute a warrant for
arrest for the offense(s) charged below: I, the undersigned, find that there is probable cause to believe that on or about
the date of offense shown and in the county named above the defendant named above unlawfully, willfully and feloniously did
(fill in crime) This act(s) was in violation of the law(s) referred to in this Warrant. This Warrant is issued upon information
furnished under oath by the complainant listed. You are DIRECTED to arrest the defendant and bring the defendant before a
judicial official without unnecessary delay to answer the charge(s) above.
While a law enforcement officer can decide exactly how and when to serve a warrant, I don't see where a sheriff
has the discretion to decide whether to serve a warrant. I wonder what legal basis the sheriff believed he
had to correct errors in the warrant. Legally a law enforcement officer applies to the court for a warrant by stating
the facts that give probable cause to arrest, if the magistrate agrees that probable cause exists, he issues the warrant.
The officer's job then is to make the arrest. It is hard to believe that a sheriff could have such a fundamental misunderstanding
of the criminal justice system. Maybe he just makes up the rules as he goes along.
Lesson: Don't read the alumni magazine
Reading the alumni notes in Wake Forest alumni magazine left me with feelings of inadequacy. One alum recently became
a judge, another is an Army JAG officer and is teaching law at the Naval Academy, a classmate was recently named one of the
top criminal defense lawyers in the country. One even took a sabbatical and lived
the life of a Tibetan monk. I decided to put my PR department to work for something
for me to submit:
Bryan Gates, JD ’94 recently successfully completed an arraignment in federal court. The presiding judge, The Hon. William L. Osteen, peppered him with questions like “Have you gone over the
indictment with your client?” and “How does your client plead?” Unflustered,
Gates replied “Yes, Your Honor,” and “Not guilty.” Near the end of the arraignment,
Judge Osteen, clearly impressed, said, “You have ten days to file any necessary motions.”
The proceeding was Gates' 35th successful federal criminal arraignment.
Bryan Gates, JD ’94 got a 77 mph in a 65 mph zone reduced to improper equipment in a recent session of Forsyth
County District Court. He was able to do this by getting a copy of his client’s
driving record from the DMV showing that he had no previous speeding convictions. Obviously
awed by his adversary’s performance, the assistant district attorney handling the case said, “Our office’s policy is to reduce
the charge anytime someone can show they have a clean record.” Gates’ lucky client
said, “I just saved a lot of money on my car insurance.
Bryan Gates, JD ’94 was involved in a rescue recently in Beckley, W.Va. Campground officials had summoned the
dog catcher to take away a stray yellow lab that had overturned trash cans in the area.
Thinking quickly, Gates saved the dog from a chain-link cell by hiding the dog in his car and driving away. Gates was able to accomplish all this even though he is not licensed to practice law in West Virginia. Gates said, “I may not be a lawyer in West Virginia, but I am still a human being.” The dog is alive, well and shedding heavily on Gates’ couch.
Wednesday, September 14, 2005
A bargain at only $630 per commandment
Wed, September 14, 2005 | link
Tuesday, September 13, 2005
Go Ed go
Tue, September 13, 2005 | link
Friday, September 9, 2005
Worry not New Orleans, we have assembled a crack team
The five stages of fiasco: fear, anger, looting, evacuation and investigation.
Fri, September 9, 2005 | link
Thursday, September 8, 2005
Trash law
I was cleaning out some old files and came upon one of the stranger cases I have handled this week: theft of garbage.
I was appointed to represent a client on a probation violation. I checked on the facts of the underlying offense,
misdemeanor larceny, and saw that the item allegedly taken was trash. The charge stated that the value of the trash was $1.
My first thought was how can you steal something that someone had abandoned? That is part of the rationale that allows
police to search your trash. Since the client had plead guilty to trash taking, I filed a motion to set aside the conviction.
After the judge heard testimony that my client had pornography in his home and that the "owner" of the trash thought
he was a pervert and called the police, she refused to set aside the conviction and activated the client's sentence.
Wednesday, September 7, 2005
Junk science in Kernersville
"Science? We ain't got no science. We don't need no science. I don't have to show you any stinking
science!"
At a marijuana possession case today an officer testified that he can look at green vegetable material and tell whether
or not it is marijuana, by sight alone. Not only that but by looking at it, he can tell what country it came from
(in my case, Canada). In fairness, he did admit the he could not tell what part of Canada it came from.
Tuesday, September 6, 2005
Koran and the courts
Regarding whether or not a trial court could interpret "Holy Scriptures"
to include any 'holy' text. Rules of statutory construction may be relied upon only in the event of ambiguity.
The term is not ambiguous. Hundreds of years of common and case law establish the fact that Judge Albright ...
is correct. When I was a law clerk at the Institute of Government in summer, 1975, I wrote an update of the Institute
Publication "Oaths of Office for North Carolina Public Officials " (1976). I believe I noted in a footnote that
the statutes regarding oaths needed updating. Not a lot of support in the State Legislature, then or now, for taking
the Bible out of our courtrooms. The lottery to the contrary notwithstanding.
I understand the argument that "Holy Scriptures" is not ambiguous. But courts play games with the
cannons of statutory construction all the time. It is not much of a stretch to say that "Holy Scriptures" applies to
the religious text of a religion. To be competent under N.C. law a witness is supposed to fear spiritual
and temporal consequences for lying under oath, so under that reasoning most any religion I have heard of would qualify.
Since the purpose of the oath is to solemnify the occasion, it is not unreasonable to read "Holy Scriptures" as referring
to any religious text. I am curious how the courts would treat the issue of testimony from an atheist who believed that
there was no supernatural being in the universe that would punish untruthful testimony. If the "dual fears" approach
is the law, then the testimony of many atheists would have to be ruled incompetent. That would raise constitutional
problems.
Two recent decisions the show the lengths courts go in statutory interpretation. The N.C. Court of
Appeals recently decided that the crimes against nature law was not unconstitutional since it can be applied to minors, non-consensual or coercive conduct, public conduct, and prostitution. So even though
the statute by its plain meaning punishes "any one who shall commit a crime against nature," the court reinterpreted the statute
and grafted on new elements that never existed before. The U.S. Supreme Court did the same thing with Sentencing Guidelines
in the Booker case, making them optional even though the wording plainly says mandatory. I think both cases are bad law, but the courts
are not strangers to creatively reinterpreting statutes. If creative reinterpretation is available, this would be a
good place to use it.
Tue, September 6, 2005 | link
Thursday, September 1, 2005
Bom, ba-dom dom
This is the county. Pasco County, Florida. I was assigned TDY, that’s temporary duty, working an operation
along Highway 19. The assignment: vice. Dispatch had reports that strippers were crossing the line with customers at
lunchtime. My job – stop them.
It was July 29. It was hot. It was nearly always hot in Florida in July. We had the daywatch.
The boss was chief of the vice division, Dick Hertz.
At 12:16 p.m. I got to Bare Assets. As soon as I got inside I was approached by a woman in a G-string and pasties.
She said: “You are? ...”
“Customer,” I said, “Name’s Friday. Joe Friday.”
“Are you here for lunch?”
“That’s right.”
I got a plate from the buffet and found a seat. The music was loud. The light was dim. The dancers
were topless.
A female with eight-inch platform shoes approached.
“Care for a dance?” she asked.
“How much?”
“40 bucks.”
“O.K. then.”
“Can I interest you in something other than the dance.?”
“Nope. Just the dance, m’am.”
The club was a licensed premises under Title XXXII, Chapter 561-568. The place could serve alcohol. The dancers
could dance topless. Touching the customers was a violation of the Penal Code.
A second dancer offered a dance in the VIP room. The cost: 60 bucks. One song. By the first chorus
I knew a Penal Code violation was imminent. By the final note, she had violated the Penal Code four times.
At the end of the song. I showed my badge.
“Police officer, m’am.”
“No shit. Damn.”
I took her downtown. At 2:08 p.m. she was booked into the Pasco County Jail. Arraignment was set for August
10.
There are a thousand stories in the naked county. But when you run afoul of the Penal Code, they all end with
“You have the right to remain silent."
(Fade out)
Thu, September 1, 2005 | link
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