Thursday, November 30, 2006


i'm sitting here with my laptop in my lap thus the name laptop. This is what happens when i get snowed in. I do not deal with free time well. I'm due to start trial on monday but Jack isn't done beating up on the state's attorney so i guess i'm not going to have my wack. Its cold here. I think half of the country is covered in freezing rain or snow. I'm waiting for the local news to tell me whether or not I have to set my alarm in the morning. I have alot of work to do but yea really don't want to go out in this stuff. I have lived in many different areas of the country but they had one thing in common they were usually warm. Well since I'm a captive audience here's my movie review for the blogosphere out there as we approach a long weekend. "Bobby" is about a variety of people in LA the day that Bobby Kennedy was shot. It is a great character study. Worth a see. This was my intelligent movie. My not so intelligent movie was "Let's go to Prison" or something like that. Very Very dumb, you will laugh. Well is looks like everything in my area of the world is closed except my court house so i guess i better sign off and get ready to plow ahead to court tomorrow. grrr

Rorschach Religion

Some Death Penalty views from people who self identified as Christian and "very religious"

"The Death Penalty should be imposed in every case where someone deliberately takes the life of another"

"The word of God says, "Thou shall not kill"

"The Death Penalty is used too seldom in this State [a very active killing state] - there are very few death penalties relative to the number of heinous crimes"

"Only God decides, not us"

"The Death Penalty is used too seldom in this State" "If someone chooses to take a life, the penalty should be to take their life"

"Victims and families of victims do not experience any sustaining fulfilling relief after "avenging" those who have wronged them"

"I believe that there are people that have a bad soul and cannot be forgiven" "The Death Penalty should be imposed in every case where someone deliberately takes the life of another"

"God forgives everyone but there area always consequences we must face for our actions" "If we impose the death penalty and he or she does not know Jesus, then we send a soul to hell and Satan wins" "Humans categorize sin and it's not our job. In God's eyes sin is sin and he can forgive us."

"Zealously Religious" "The Death Penalty should be imposed in every case where someone deliberately takes the life of another"

"The death penalty gives people employed by the government the right to kill a killer to show that killing is wrong. We can't create or destroy life and judgment is reserved for God"

Reading through these got me thinking about something the mindful mission posted a while back on the differences between the Religious Right and the Religious who aren't the Religious Right, and some of my thoughts on the efforts by the religious right to co-opt Caesar's means of enforcing certain behaviors. Note that the anti-death penalty people cite to doctrine or the Bible; the pro-death penalty folks don't (except for the "bad soul" person). The article cited above brings out part of why that is.


Deer Judge: You Boned It. (Part 1)

The Judge's ruling in the dead deer sex case came out last week and I've been too busy to write about it.

In fairness to Judge Lucci, as a response to the brief filed, the ruling's not that bad. The motion was a quick one and the argument had to do the the Websters definition of animal specifying a living being. The ruling was equally hastily thought out and was essentially:

1) we shouldn't be bound by a dictionary definition, we need to use a "common and ordinary meaning of the word based on common usage and understanding" which I define as (essentially) "it's an animal so long as there is a recognizable animal "sex organ, mouth or anus""

2) since the pertinent chapter of the Wisconsin statutes criminalizes sexual activity "outside the institution of marriage" and what Brian Hathaway did was sexual activity outside marriage, what he did must therefore have been intended by the legislature to be covered by the statue.

But a Judge has a duty to the Law, not just to react to counsel's arguments. If both counsel are wrong and are arguing the wrong law, the Judge should know (or find) and follow the law, even if the parties don't cite it.
Since this appears to be an issue of first impression, it's curious that the Judge failed to do that. (Then again, maybe it's because it's an issue of first impression that he ostriched it. - But that leads to another question: if you don't know the law, won't research the law, and won't rule on the law, why are you making the big bucks?)

So what should the Judge have done? (and maybe counsel, too)
1. Hmm. Interesting issue - The statute is silent and there aren't any on-point cases. maybe I should look for similar statutes and see how they are treated. Maybe I'll look to see how the statutes treat sex with humans and sex with dead humans?

A. With a little bit of searching, one would find Wis. Stat. 940.225 (at page 8) , which punishes sexual assault. With a little bit more searching, one would find paragraph 7, which specifies "This section applies whether a victim is dead or alive at the time of the sexual contact or sexual intercourse" AHA! The legislature noted an ambiguity and cleared it up, yet did not do so for another sex offense, bestiality, at 944.17 (at page 1)

B. Going a little further afield, Theft of property "taken from the person of another or from a corpse" is a felony. Wis. Stat. 939.20(3)(e) (at page 7) (emphasis mine) Once again, the legislature seems to know the difference between a live person and a dead person and legislates accordingly.

C. So we see that the Wisconsin legislature understands that they need to specify whether they meant a statute to apply to the dead, not only with regard to general criminal offenses, but specifically with regard to sex offenses. If the legislature knows how to, and does, write laws that specifically include the dead, that means that when the legislature does not include the dead, they aren't meant to be included. If the Legislature wants to, they can change the law, and they probably will. Then and only then will having sex with a dead animal be illegal in Wisconsin.

Preview of part 2:

2. Hmm, maybe there is another, more studied area of law that addresses the legal implications of life and death? Perhaps a question having to do with when a fetus becomes a person/victim of an offense under the law? Perhaps there's been more written on that issue? Maybe even an ongoing national and states-wide debate on those issues? Well, actually, in Wisconsin that's a bad idea. The caselaw is an absolute mess of contradictory, Monty Python worthy nonsensical, results oriented junk.


Thursday, November 23, 2006

To Defend (Thanks Indiana PD)

Some writings are inspired. They're the ones that make you catch your breath, or get chills, or choke up when you read/hear them. Like the Gettysburg (pic) Address (text) , or the I Have a Dream speech. (text, audio, video)
Some writings are more focused on a smaller audience; I'm sure there are some of Peggy Noonan's Reagan speeches that work for some people, but not for me.
Similarly, stuff that works for PDs may not work for DAs.
I've been able to write a couple that still work for me, but I haven't read or heard one better than this for PDs:

Indiana PD had a blog for a while, then disappeared. There was some stuff left on Google cache, but that's gone now.

One of her posts was entitled "To defend"

To defend

In all formal relationships with society, the most intimate and most valuable is the giving of counsel. Those of us who do this stand against the passions of the mob, wherever it rages. We stand against legal barbarism. Some of us do it and are well paid; some of us do it and are not. But no matter who we are, we insure fairness from the Judge and the Court.

Fairness is enforced, not by law or wisdom, but by the vigorous advocacy of public defenders. We teach the loneliest lesson of all - that even guilt deserves a fair hearing, both in order to determine its measurement and to decide a fitting punishment.

The greatest trial lawyers in the world are not the ones watched, covered, and adorned by the media. The greatest trial lawyers in the world are the public defenders, who do their work in empty courtrooms, without the press, without an audience and, sad to say, most of the time without the family of the person on trial. Each day, the public defenders in that grim and dismal setting open their mouths for the dumb; for the rights of all who are racked desolate by time, by circumstances, by class, by race, by hatred.

Each day, it is the public defenders who guard against the human person. Each day in courtrooms, it is the criminal defense attorney who draws from juries their own central goodness, to raise them up to restrain bad laws. This calling insures that humankind's insatiable thirst for cruelty will not be gratified. This sacred responsibility assures that the lowest and most humble beings are exalted by their presence before the bar of justice.

posted by Indiana Public Defender at Saturday, June 18,



Wednesday, November 22, 2006

Subsidizing the Private Bar

One of the private attorneys won a motion in front of the Judge today. He had a good brief and good facts. I should know, because I developed the facts and wrote the brief. However, my client had been able to bond out, which meant he had to get private counsel. I wrote the brief anyway, to make sure it'd get done. I'm glad it worked and I'm glad my guy went free on that B.S. charge. I just wonder how much his attorney charged for my work...


Tuesday, November 21, 2006

Is the Bronx Really that Bad?

Testimony from the trial of Greenburgh, NY police officer Erik Ward for "official misconduct":

"He wanted to go to a motel in the Bronx where I would defecate on him, but I told him I was uncomfortable going to the Bronx"

I guess there are just some places a dominatrix won't go.


And This Month's Miranda Award Goes To...

Miss V. B., for her hard-edged portrayal of a citizen in a custodial interrogation:
Officer B. attempted to interview V. but she would not respond with anything but "F*** You! I want my lawyer."
Unfortunately, she was saddled with a co-star whose performance was characteristically not up to the rigorous demands of the Academy.

However, she did get a deferred sentence.


Friday, November 17, 2006

Paraphilia Phriday 11

What makes a good story?
To quote The Princess Bride,
Fencing, fighting, torture, revenge, giants, monsters, chases, escapes, true love, miracles!
(the book adds, inter alia, Bad men... Beasts of all natures and descriptions... Death...Passion.)

What makes a good paraphilia phriday?
Sex...Life...Death...Paraphilia...Epistemology...Wisconsin...Public Defenders...

Today's paraphiliac (news article here) was NOT caught having sex with a deer, but was caught having sex with a deer carcass.
There's an important legal difference - having sex with an animal would be illegal in Wisconsin - but are dead animals legally animals? Fredric Anderson, Bryan Hathaway's Public Defender (brief here) says no, and the DA helps to explain why the PD's right.
If, for purposes of the bestiality law, 'animal' includes dead animals, where does a dead animal stop being an animal? when its decomposed? (how much decomposition?) when its temperature reaches the ambient temperature? when its not recognizable as an animal?
Or is it as simple as the DA pointed out in argument, that (at least for pet dogs) once dead "It stays a dog for some time." How's that for void for vagueness?
Hathaway's PD points out that the only sensible rule is the bright-line rule - death. Anything else leads to absurd results: "When does a turkey cease to be an animal? When it is dead? When it is wrapped in plastic packaging in the freezer? When it is served, fully cooked?"

There's a lot of helpful analogous law out there - rape does not include dead people, so we have necrophilia laws. You can't have assault and battery on a dead person, its charged as violating the dead. On the other end of life, (depending on your jurisdiction) you don't have a "person" for purposes of being a murder victim unless one is "born alive" i.e. taking one's own breath and sustaining one's own circulation.

To carry on the good story analogy, one place there Hathway's case and story run into problems is that this is a sequel. He pled nolo last year to killing a horse - so he could have sex with it.

And the Wisconsin angle? The winners from Paraphilia Phriday 10 are Cheddarheads, as was this platonic necrophiliac.

Oh - and what's up with the Princess Bride theme? Its because of one of the cites in Anderson's brief:
As Billy Crystal noted in The Princess Bride (1987), "There's a big difference between mostly dead and all dead."



UPDATE: The ruling is out, and some of my analysis here.

Wednesday, November 15, 2006

Police "Expert" Gets His Bluff Called

Our system of justice relies on the faith that, if both sides bring their "A" game, the truth will be revealed. However, it rarely works out that way. To paraphrase Winston Churchill, the adversarial system is the worst form of dispute resolution except all the others that have been tried.

This time the State didn't bring its A game. The State put on a police officer to serve as its expert witness in a meth manufacturing case. It became very clear very soon that the officer wasn't ready for prime time:

"Striker plates are used to get Phosphoric Acid."
"You can use alcohol or HEET - they're different, but they do the same thing - it turns cold pills into a liquid... I don't know if it's a chemical reaction or if it goes into solution- I'm not a chemist."
"I don't know why Sodium Hydroxide is used, I just know its used in meth manufacturing." "No, we didn't find any Sodium Hydroxide."

"I assume they had either made methamphetamine in the past or were going to make it sometime in the future."

"If you have Iodine, Red Phosphorus and Pseudoephedrine, you have a meth lab."
"We found red powder that we believed to be Red Phosphorus - No, we didn't ask the lab to test for Red Phosphorus""
"I know you can make Iodine out of Hydrogen Peroxide but I don't know how - I'm not a chemist."
No, we didn't find any Iodine, Pseudoephedrine or Hydrogen Peroxide."

Motion to Dismiss Sustained.

1) Sometimes the State, with its huge advantages in manpower, money, experts, and influence, squanders those advantages.
2) If you know the law and the facts better than the State and its witnesses do, you can capitalize on the State's errors.
3) Resist that urge to humiliate a cop to tears, no matter how momentarily satisfying - the good ones (i.e. most of them) will remember that you let them off with a warning and appreciate it - which may pay off later.


Tuesday, November 14, 2006

Slow Posting Excuse # 43

I'd meant to write a post for Veteran's day, but I was still doing election stuff. Picking up signs. If losing isn't enough to depress you, picking up your own signs over 2000+ square miles will. It takes some time, too, time that could have been spent getting to know the campaign operatives formerly known as wife and kids.

However, buoyed by the flattering euphemism"sporadic" being used to describe our posting over the last few months, I'm going to try to stay with it a little better.


Friday, November 10, 2006

Birthday Chauvinism

Why do you join the Army?

Why do you join the Navy?

Why do you join the Marines?

Things haven't changed a lot since World War I...
OK, it is a little over the top, but it's our birthday...

Trivia aside: (not trivia for Marines, though)
What is wrong with this phrase proposed by my campaign manager a couple months ago?
"this ex-Marine Corp JAG"
There are two cringers and a quibble - can either of the two readers we have left find them?

Happy Birthday, Marines!

Thursday, November 09, 2006

Sometimes You Get What You Deserve, Not What You (Think You) Paid For

Overheard in an empty courtroom being used as an office by one of the private attorneys and his client:
"Man, my co-defendant on this case is getting the exact same deal! And he's got a Public Defender! I've got a paid attorney, so I should get a better deal! You need to get me a better deal!"

Wednesday, November 08, 2006

Electoral Hangover


For the last month, I've had two competing thoughts: 1) Crap! November 7 is coming up WAAAY too fast and 2) Lord, will November 7 EVER get here?

Well, it's come and gone and Jack's going to be staying put for a while; we lost, and even accounting for the opposition's going negative and dirty politicking, he probably would have won, anyway (for the appellate folks, yes there was misconduct but it was harmless error)
He's been in the area 20+ years, part of the local judicial system there almost as long, and a judge for over half that time. I've been in the area 5 years and working in the nearby city, i.e not locally.

So I had an uphill battle. Like the little guy in the picture, I kept all my work above the belt, even though there were some very tempting targets had I been inclined to play dirty. I take the fact that my opponent did go negative and did play dirty as a compliment: In his assessment I was frighteningly close to beating him.
So how do I feel? Really good, actually. I busted my butt for something I believed in and kept my honor clean while all around me others were further tarnishing theirs.
If I made Judge, I was preparing for a rather lonely time on the bench, as a good judge can't have any friends, at least no friends who expect favors or favorable rulings. A good man I will continue to have the pleasure of working with used to be a judge in that jurisdiction, and was ostracized because he ruled on the basis of the law an not on (what he thought were) friendships.
So what do I have to come back to? What have I got here at the office? A family. True friends. Professional, honorable (98% of the time) opponents. A calling to the work and work that has purpose. It's as close to a win-win situation as you can get.
In other news, Janet's candidate lost too, getting outspent several times over. Terri's candidate lost a close, dirty and frustrating race.
Yes, Terri.
She may be coming on board to take Chrissy's place - we'll see.