Tuesday, August 30, 2005

voting rights

Nebraska in the Lead
The United States stands virtually alone among democracies in having laws that continue to disenfranchise former prisoners even after they have paid their debts to society and finished parole or probation. A vast majority of the nearly five million citizens who were barred from voting in the last presidential election would have been free to vote in Australia, Britain, France and Canada.
Like so much of what ails America, laws that strip felons of the right to vote are rooted in race. The South enacted these restrictions during the late 19th and early 20th century as part of a sweeping effort to limit black political power. This ugly legacy is painfully evident in statistics showing that black people account for about 40 percent of disenfranchisement cases and only about 12 percent of the population.
Indeed, in the half-dozen states that have the strictest postprison sanctions, an astounding one in four black men have permanently lost the right to vote.
But the argument that felons should be permanently cast out of the body politic is losing its grip in many Northern and Midwestern states where Democrats and Republicans have proved equally willing to revisit and relax disenfranchisement laws.
In Iowa, the governor recently signed an executive order restoring voting rights to felons who complete their sentences. In Nebraska, the Legislature voted to replace a voting ban for convicted felons with a system that automatically restores their rights after they complete their sentences and pass through a two-year waiting period.
The Nebraska case is all the more interesting because the law was embraced by conservative Republican legislators who helped override the governor's veto. An emotional high point in the debate came when State Senator Lowen Kruse, a retired pastor, told his colleagues about a neighbor who had been out of jail 10 years and had become a family man with a good job - "just the kind of person you want within your community." The man, he said, deserved to have his vote automatically returned instead of being forced to beg a board of pardons to restore his rights. "I would rather keep my dignity," Senator Kruse said, "and I would much rather that we allow him to keep his dignity and help him to move on."
from CURE

Monday, August 29, 2005

new look on dui's from VA

In Fairfax, VA, Judge Ian O'Flaherty ruled that at least two DUI cases must be dismissed based on his reading of Francis v. Franklin, 471 U.S. 307 (1985). The gist of the decision is that the presumption that someone who has blown a .08 is intoxicated. This allows the State to skip one of the elements in their case in chief. In the Francis case the S. CT stated that was not constitutional for the State to get a freebee.

Thursday, August 25, 2005

Feng WHAT?

Today, I cleaned my office. I mean CLEANED. I moved furniture, got about a mountain of dust out of my room and now three other attorneys are doing the same. (including jack and chrissy) It is truly a sign that fall trials are about to start. Every year about this time I clean out my desk but this year I need some inspiration and good chi in here to get me ready for my two murder, two assault and battery with a deadly, and two drug cases that are all set before the end of October.

Wednesday, August 24, 2005


I wonder if I can hand these out for the State's second closing argument at my next trial?

Clients are the same the world over, reprinted from "Things You Never Thought You'd Have to Tell Your Client," page 437.

Police seize man for naked rant atop a building, followed by his jumping 25 feet into a blackberry bush; the man is then "taken to the Whittington Hospital where he was sectioned." Ow. (Last sentence)

"Sgt. McDonald testified that, as he approached Mr. Muriel's car, his suspicions were aroused by certain features, such as the Illinois license plates, three police support decals affixed to the windows, a teddy bear on the dashboard and an American flag on the front of the vehicle. In his experience, Sgt. McDonald testified, such items are used to divert attention from illicit activity."
The 7th Circuit again, but no Judge Posner this time.



Skelly and Meth Mouth have been paying more attention to meth lately, so I'll throw in a couple of tidbits:
This guy had his lab set up in the Baptist Church where he was a janitor.
And for different manifestations of punding...Bicycles? Arrowheads? Faugh! How about stealing an entire house? Not the insides, mind you, but the house. Brick by brick, shingle by shingle.

"But the home actually belonged to Dallas-based St. Ives Realty. A company representative called [Constable] Taylor on March 15 to report her house stolen.
"I said, 'Is it a trailer house, ma'am?'" Taylor recalled. "She said, 'No, it's a brick house.' I said, 'What?'"

OK, I guess the arrowheads and house stealing are not technically punding, though.
On the other hand, I've become convinced I must be a meth cook/addict too:
Looking for arrowheads? No, but crinoids, yes. Rebuild carburetors, check. Stay up late, check. Have scientific glassware and canning jars? Check. Red Phosphorus, coleman fuel, iodine, rubbing alcohol, sodium hydroxide, ether, muriatic acid, aluminum foil, plastic tubing, acetone, hydrogen peroxide, paint thinner, coffee filters? Check. Two-layer liquids? Check. (The kids were extracting plant pigments, honest!) Cold Tablets? No, actually, but around here, endeavoring to manufacture carries the same penalty as manufacturing. The State's proof doesn't even have to rise to the level of proving an attempt.

That being said, although most of us have enough household goods to be charged with at least endeavoring, I have yet to see the police bring a case where it wasn't painfully obvious that there was either a cook or gathering of raw materials for a cook at some other location.
Of course my client wasn't involved, and even if he/she might have been, the cops smelling an indefinable 'odor I have learned to associate with the manufacture of methamphetamine' is not an exigent circumstance authorizing a safety sweep of the premises to ascertain the presence of the 'deadly' meth chemicals.

Tuesday, August 23, 2005

Pat Robertson Issues Fatwa Calling for Assassination of Hugo Chavez

As stated on the 700 Club:

"We have the ability to take him out, and I think the time has come that we exercise that ability"
"We don't need another $200 billion war to get rid of one, you know, strong-arm dictator"
"It's a whole lot easier to have some of the covert operatives do the job and then get it over with"
"You know, I don't know about this doctrine of assassination, but if he thinks we're trying to assassinate him, I think that we really ought to go ahead and do it"
"It's a whole lot cheaper than starting a war ... and I don't think any oil shipments will stop"

None of that struck me as particularly Christian.

Physician, RTFM.

Welcome to the world where there is no separation between church and state; where religion is whored out for secular gain. As the Baptists of yesteryear pointed out, the separation of church and state exists as much to protect religion from the corrupting effect of secular politics as it does to protect the state from religious intolerance and sectarian quibbles. If religion is yoked to politics, when people get disgusted with politics, people get disgusted with religion, too. Perhaps there is a lesson to be learned from the much less religiously active Europeans, with their history of official, state-sponsored religions.

And where these two kinds of government[civil and ecclesiastical], and the weapons which belong to them, are well distinguished, and improved according to the true nature and end of their institution, the effects are happy, and they do not at all interfere with each other: but where they have been confounded together, no tongue nor pen can fully describe the mischiefs that have ensued; of which the Holy Ghost gave early and plain warnings.

Isaac Backus, An Appeal to the Public for Religious Liberty (1773).

To be fair to the Baptists, although Pat Robertson is an ordained Southern Baptist minister, his theology is more Pentecostal. (Which, in turn, isn't fair to some Pentecostals either.)

Update: Pat Robertson says he was "misinterpreted by the AP" but his words "if he thinks we're trying to assassinate him, I think that we really ought to go ahead and do it" seem pretty unambiguous.
C'mon, Pat, be a man. If you're right, stick to your guns. If you're wrong, apologize. We're not yet to the point where the words of the powerful can always be rewritten; you're on video on your own show!
I was going to be juvenile and link to a Fishbone song about lying, but I found one that fits Pat better. (And it's just as juvenile.)

Thursday, August 18, 2005

Incompetent(cy) Ramble

This is a section from a Japanese propaganda pamphlet from WWII advising American soldiers of the things they MUST NOT DO or else they will be sent home from the war for mental health reasons. Wink, wink, nudge nudge...

Ironically, the standards for being too crazy to kill someone in war are a lot lower that the standards for being sent to prison for acts done while seriously mentally ill. Cf. Guthrie v. Shrink, 1 Alice's Restaurant at 8:40 (1967)

Unfortunately, malingering rarely works for our clients, and they'd have to do a hell of a lot better than what's in the pamphlet, given the applicable standards:

Doc: Your attorney's name is Jack. Do you know who your attorney is?

Client: I think his name's Jack.

Doc: Good. And there will be a person a black robe; that's the judge, and a person in a grey suit; that's the prosecutor. You understand that, right?

Client: Yes.

Doc: Good. And you're charged with A, B, and C, right? Now, what are you charged with?

Client: A, B and D?

Doc: Good, and you feel that you can talk with Jack about your case?

Client: Yes, so long as the pigeons that tell me to poop in my pants won't be there...

Doc: Congratulations! You're competent!

(no, it's not really that egregious, but sometimes it feels like it)

Monday, August 15, 2005

10 worst places to be black American

The Online magazine Black Commentator listed the 10 worst places to be black based on the percent of the black population that is incarcerated.
1. Wisconsin 2. Iowa 3. Texas 4. Oklahoma 5. Arizona 6. Delaware 7. Nevada 8. Oregon 9. California 10. Colorado.

Friday, August 12, 2005

Marines and Public Defenders - Separated at Birth?

MarinesPublic Defenders
Need to be a bit crazy to sign up Need to be a bit crazy to sign up
As the red-headed stepchildren of the military, called on to do twice as much with half the resourcesAs the red-headed stepchildren of the Justice system, called on do twice as much with half the resources
Support and defend the Constitution against foreign enemiesSupport and defend the Constitution against domestic enemies
Get attacked by foreign citizens for supporting and defending the ConstitutionGet attacked by domestic citizens for supporting and defending the Constitution
Have shorter OODA Loops than anyone elseWouldn't know an OODA Loop from a Fruit Loop - but still have shorter OODA loops than anyone else
Bad day: you or one of your Marines gets killedBad day: one of your clients gets killed
In order of importance, need: Strong Body, Strong Spirit, Strong MindIn order of importance, need: Strong Mind, Strong Spirit, Strong Body
If you're not called to be a Marine, you probaly won't last very longIf you're not called to be a PD, you probaly won't last very long
Don't suffer fools gladlyDon't suffer fools gladly (except clients)
Often underappreciated by the people they're helpingOften underappreciated by the people they're helping
Esprit de Corps means something Esprit de Corps means something
Will drink you under the tableWill drink you under the table



It's finally here. After a week of constant court, an alarm that decided to go off twice a night for the entire week (it won't be fixed until wed of next week) and trial season looming its finally Friday. There are weeks were I swear they add hours. This was one of them.
Don't get me wrong, my case load was not horrendous this week, but when it takes three hours to do one plea that the paperwork is done when you arrived at court. The DAY takes a life of its own. So to all of the guardians out there have a good weekend. Now all i have to do is get through one more day of court to be able to start mine.

Thursday, August 11, 2005

Jack, Esq.

Apparently I am a
Top-Notch Appellate Litigator
and a
Supreme Court Litigator
and a
Trial Lawyer.
with these qualifications, I really wish that the words
PD and raise existed in the same universe...
But then again, I'm also a
and a
nerd (major geek to my friends)
(super geek if I had cable)

A Tale of Two Judges

"Gilding the lily, the officer testified that he was additionally suspicious because when he drove by Broomfield in his squad car before turning around and getting out and accosting him he noticed that Broomfield was “star[ing] straight ahead.” Had Broomfield instead glanced around him, the officer would doubtless have testified that Broomfield seemed nervous or, the preferred term because of its vagueness, “furtive.” Whether you stand still or move, drive above, below, or at the speed limit, you will be described by the police as acting suspiciously should they wish to stop or arrest you. Such subjective, promiscuous appeals to an ineffable intuition should not be credited."
U.S. v. Broomfield (Judge Posner throwing the BS flag on a cop, albeit in dicta)

"I fear that, eventually, we are all going to become collateral damage in the war on drugs, or terrorism, or whatever war is in vogue at the moment. I retain an abiding concern that our Declaration of Rights not be killed by friendly fire. And, in this day and age, the courts are the last, if not only, bulwark to prevent that from happening."
"And, I also know that my most unwelcome and paternalistic relative, Uncle Sam, is with me from womb to tomb. Fueled by the paranoia of “ists” and “isms,” Sam has the capability of spying on everything and everybody--and no doubt is. But, as Sam says: “It’s for my own good.”"
"I don’t like living in Orwell’s 1984; but I do."
Montana v. 1993 Dodge Pickup, et.al. (Judge Nelson concurring in the decision to permit the police's trash-diving to get probable cause for a search warrant. "I have signed our Opinion because we have correctly applied existing legal theory and constitutional jurisprudence to resolve this case on its facts.")

Judge Posner didn't have to include that he thought the cop was full of crap. He ruled that the cop's encounter with the defendant was consensual. Analysis over. No need to check for reasonable suspicion to support a Terry stop. Done. Judge Posner didn't need to assuage any guilt over ruling against the defendant, he did it to let the system know about a specific problem.

Judge Nelson's legal and citizen conscience bothered him enough to write a powerful and compelling concurrence, but not enough to do the right thing. He's looked at the sorry state of the 4th Amendment and realized that we're all the proverbial frogs in the pot and the water's boiling. So he decides that's OK because he didn't notice the temperature rising earlier. Hence the-this-is-bad-but-I'm-too- scared-to-jump-out-of-the-pot concurrence. ...full of sound and fury, signifying nothing.
Granted, one could make an argument that to go against 'existing legal theory' would be 'judicial activism.' However, even assuming that our Founding Fathers would be OK with trash-diving (a big assumption) Judge Nelson has laid out a compelling argument for judicial activism (or rather judicial correction) that even Real Republicans (TM) would agree with. But he couldn't bring himself to jump out of the pan of water that's slowly boiling all of us.


Monday, August 08, 2005

ncaa-leave my school alone

On Friday the NCAA ordered that eighteen schools will not be allowed to use their mascots in post play. My glorious alma mater was on the list and frankly I'm spitting mad. During my four years at the school, our Indian tribe that our school was named for had the Chief of the tribe come to the school at the beginning of the academic year and bless the school both for academics and athletics. Being named after the tribe, our mascot was the Indians. During my four years at the school, one of my friends actually served as the mascot and did so with honor. Our school has continued to have a good relationship with the tribe. Chief Chad Smith of the Cherokee Nation (former public defender)made a statement this weekend that he was finally vindicated that cartoonish mascots were finally being called to the mat. While I agree that some mascots have been stereotypical and offensive in the past, I think the NCAA did not look at each school on an individual basis. I don't believe that Chief Smith should speak for all tribes, unless he has contacted each and everyone of them. One of the reasons, I chose the school I did was because of the location and the relationship the school had with the tribe and the land, I'm Choctaw and Cherokee depending on what side of the family your looking at first and frankly I want the NCAA to rethink there position on this issue.

Wednesday, August 03, 2005

struck by lightening

Over the weekend, I went and saw "Must love dogs." I love Diane Lane and John Cusak and i'm a hopeful romantic so why not. It was funny, but it disturbs me that at the beginning of the movie after Diane Lane's character gets a divorce that her entire family show up with pictures of guys for her to choose from to get her to start dating. Men don't get this pressure, like women do at least i don't think they do. After breaking up with my boyfriend of six months the first question I was asked at a dinner party after hearing of the "demise of the boyfriend" was do we need to fix you up or are you still in mourning. Okay I was over the breakup in about 24 hours why, the shoe didn't fit. Not prince charming, so get over it and move on. I"ve never been one to dwell. But why the incessant need to move me on to new guy three days after a breakup. Then yesterday in the mail, I get a statue of St. Jude (for us non catholics thats the saint of hopeless causes) at first i thought is was for my number of clients but no it came with a book called Red-hot and cajun. Evidently this is sent to you when your meant to be married and called being struck by lightening. I'm even getting pressure over the mail system. Book was funny. Needless to say the statue is now looking over my files in the office and incidently two got dismissed today so maybe theres something to this whole Saint thing.