Monday, September 3, 2007

Z

The Legal Monthly

Vol. 2 No. 7 Read Z the Blog at http://zlegaltimes.blogspot.com/ Aug/Sep 2007

The Uniquely Gregarious Source Of Legal News And “Divers” Contrary Information



Contents

Toobin's Eulogy of Habeas Corpus -- the last word?

The Fall 2007 Short List - AUSA should avoid six things

Not Criminal, Yet Political of The Court

Scotus: Past as Prologue, Sharp Rights, U- Turns Ahead?

Sentencing: Bush Commutes Scooter's Time

In George W. Bush's U.S. Supreme Court

About "Apprendi's Domain"

International Law

GPS tracking

Results of habeas study

Are You Kidding: the Twenty-Three Year BJ

Registration causes more problems than it solves.

USA Patriot Improvement and Reauthorization Act

Hourly Rates: Top That

From My New Favorite Blog

An Easy Hundred Thou?

From Z Editor (and Mail) A financial crisis narrowly avoided caused Z delay to send this issue to the printer. The good news, however is (there's always that) this is a double issue! (That means it took twice as long to produce as usual. Haa--gotchya!) Whew, it's been a hot summer. I really feel for you guys in the fields. Many letters have been received, a new address or two added to the distribution list. Unfortu-nately, Z has not been able to personally call, write, or otherwise harass the PTB (powers-that-be) at this time. Patience, those of you soon-to-be-released, the long nightmare will soon be over. Keep those grievances going!

Toobin's December Eulogy of Habeas Corpus -- the last word?

During the Presidency of George W. Bush, the executive branch, with the eager acquiescence of its Republican allies in Congress, has essentially dared the courts to defend the rights of the suspected Al Qaeda terrorists, who have been held at Guantánamo, some for as long as four years. The Supreme Court has twice taken up that challenge and forced the Administration to change tactics; the new law represented a final attempt to remove the detainees from the purview of the Court. Now, of course, Republicans no longer control Congress, but the change in the law of habeas corpus may be permanent.” Fast-backwards in time, facing rebellion of the Peace Democrats in Maryland, and a real chance that Washington would be surrounded and the White House captured, Lincoln arrested Baltimore’s mayor and chief of police, as well as several members of the Maryland legislature, so that they couldn’t vote to secede from the Union. Suspensions of Habeas have been rare in American history. The most recent occasion was in 1871, when President Ulysses S. Grant sent federal troops to South Carolina to stop attacks by the Ku Klux Klan against newly emancipated black citizens. This fall (2006) however, Congress passed, and President Bush signed, a new law banning the four hundred and thirty detainees held at the American naval base at Guantánamo Bay, and other enemy combatants, from filing writs of habeas corpus.

Was that really so novel? How does it compare with the AEDPA? Effective since 1996, that law knocked the teeth out of Habeas and allows states to ignore all but the most blatantly obvious miscarriages of justice involving US citizens (and subjects) in our state and federal prisons.

The Fall 2007 Short List - AUSA should scrupulously avoid these six things, at a minimum: 1.If you can't beat'em with a stick, shoot'em, (no, Mr. Prosecutor, you can't shoot first and ask questions later; 2.Pursuit of Gun Control, and other ambitious “Lefty” Advocacy; 3.Failure to prosecute Washington State Democrats following a close election; 4.Being targeted for a contract killing, and/or Sour Grapes; 5.Aggressive Investigation of a fellow AUSA's Murder; and 6.The Short List of Already-Fired Federal US Attorneys. Finally, did I mention this one: Don't commit an alleged suicide (See below, under topic of MISSING GLOCKS). Source: The New Yorker Magazine, “An Unsolved Killing: What does the firing of a U.S. Attorney have to do with a murder case?” by Jeffrey Toobin.

Not Criminal and Yet Transparently Political of The Court: House Democrats would reverse just one of the more eggregious, sexist and pro-business Supreme Court decisions of the 06-07 Term. Showing no compassion toward the discriminated-against (women) in the workforce the President threatens veto of any such law.

Scotus Focus: Past as Prologue, Sharp Rights, U Turns Ahead? It can be said that the law changes slowly -- except when it doesn't -- in which case it changes, well, suddenly. Of course there are consequences, as surely follow they must, just as night follows day. But will the consequences follow as suddenly as the changes in the law that were wrought? Also, what will be the unintended consequences of these changes in the law? Bright and thorough thinkers the justices (and their clerks) must be, things always pop up unexpectedly and not only because wholly unforeseeable. Such is life. For instance, it was not entirely unforeseeable that removing a dictator, Saddam, would cause a power vacuum, but it is pretty well assured that a future war against Iran is not a necessary consequence even if a probable one arising out of the invasion of Iraq and the decapitation of Saddam Hussein's regime. Incidentally, Condy Rice was recently named THE most powerful person in Washington and also designated the last great hope that the U.S. won't attack Iran before the current president leaves office. Due to very unfortunate, if unintended consequences and events “on the ground” it follows that drawing out the occupation of Iraq for yet another year or two will almost certainly require the institution of a draft to ensure that our armed forces can be viewed as an effective deterrent against possible hostile action by certain of our enemies and potential enemies. Also abundantly clear is that neither the size, nor strength nor quality of the present-day armed forces are sufficient or effective to deter terrorists and suicide bombers. Also, on topic of continuity or change, will the GOP-inspired Court continue to bash the little guy and evade the pursuit of freedom, equality, opportunity? Will it continue to grant favors to big oil, big insurance, big police and big corporations? They say that the Court's “ideological” direction follows the electoral returns, and the new “Roberts Court” seems to be doing just that. Both of the newly minted justices, (“CJ” and “Sammy”) appear to be very reliable votes for “conservative” “right wing” and “law and order” -- so let's see how, and what, they did. And speaking of big police and big corporations, there seems to be the small matter of EIGHT THOUSAND, some say that it is actually more like EIGHTY THOUSAND, MISSING GLOCK SIDEARMS in Iraq that have been traced back to original U.S. custody. Guess who has them now? Hint: it ain't the Iraqi military we are supposed to be training to defend Iraq so we can leave. Hint again: it's the BAD GUYS. Also mysteriously, an Army man is now dead, allegedly having committed suicide while investigating the disappearances of these firearms. So this is how our tax dollars are being spent: siphoned off in illegal, under-the-table arms deals brokered by “private contractors” dealing with the enemy. The pistols go for about $500 in the U.S. but fetch up to $3,500 over there, on the black market. That's a pretty nice mark-up. Yup.

The Supreme Court dedicated nearly a third of its docket to criminal cases (including habeas) during the recently completed term, ruling against defendants almost twice as often as in their favor. Unlike business cases, which produced relatively little dissent, the criminal docket highlighted the Court’s increasing ideological divide. More than 45% of criminal cases were decided 5-4 – all but one along ideological lines – versus 33% of the docket as a whole. The Chief Justice and Justice Alito compiled nearly identical voting records in their first full term together on the bench, aligning almost always with Justices Scalia and Thomas. We'll start calling them the Bushie twins. Meanwhile, the left-leaning Justices also recorded higher than normal rates of agreement.

-- In 2000, the old Court threw out a state ban on late-term abortions by a 5-4 vote. This year, the new Court upheld such a ban by 5-4.

-- In 2003, the old Court upheld the McCain-Feingold campaign finance law by 5-4. This year, in a 5-4 vote, the new Court struck down the section of that law restricting pre-election issue advertising.

-- In 2003, by 5-4, the old Court allowed the use of race as a criterion for admission to schools of higher education. This year, by 5-4, the new Court struck down the use of race as a criterion for placing students in public schools.

-- On the old Court, three reliably conservative justices—William Rehnquist, Antonin Scalia, and Clarence Thomas—were frequently joined by Anthony Kennedy, a moderate conservative. Four reliable liberals—Stephen Breyer, Ruth Bader Ginsburg, David Souter, and John Paul Stevens—were sometimes joined by Sandra Day O'Connor, a swing vote. On the new Court, Bush has replaced Rehnquist with John Roberts, an even more reliable conservative. He also replaced O'Connor with Samuel Alito, a reliable conservative. Alito's vote, along with that of Kennedy, shifted the Court's majority to the conservatives. The four liberal justices are now almost always in the minority on close votes.

-- Perhaps what is most notable about the civil rights subset of this term’s docket is that Chief Justice Roberts and Justices Scalia, Kennedy, Thomas, and Alito found themselves in the majority in every case. When it came to civil rights this term, there is no question that the conservatives carried the day.

Faux judicial restraint is paying off for Justice Scalia even if he would prefer to change the Constitution his way.” In the unusually few cases it decided in the last term — 68 — the court specifically reversed only three previous cases, including one that had stood as settled law since 1911. But it doesn't have to be specific to make a U-turn. Chief Justice Roberts' opinion in the McCain-Feingold case left room for Justice Kennedy to say, in his concurring opinion, that there are some cases in which the law still would hold. No one can identify any, nor are prosecutors likely to try to enforce the law after this term's decision. But the court never said it reversed its 2003 opinion upholding the law. Likewise, when the chief wrote that school districts may not consider race to integrate schools, he cited the 1954 school desegregation case as if it were the precedent he was upholding. That left room for Justice Kennedy to write that there are still cases when school districts can consider race. Again, nothing formally changed. It will be a miracle, though, if school districts can find one of Justice Kennedy's hypothetical exceptions to stay integrated after what Chief Justice Roberts wrote about the two districts that were integrated in a way the court had approved of for 50 years. AND,

In George Bush's U.S. Supreme Court, the big guys win, you lose -- unless, of course, you are one of the big guys, in which case, congratulations. If you are a customer, tough. Manufacturers may go back to barring retailers from underselling the price a manufacturer wants. If you are a mere taxpayer, tough again. You are barred from challenging government expenditures on faith-based programs as possible violations of church-state separation. If you are convicted of a crime and your lawyer files your appeal three days late, too bad -- even though the lawyer filed on the date the judge (mistakenly) directed. Justice David Souter, in dissent, put it plainly: "It is intolerable for the judicial system to treat people this way." If you suffer a troubled pregnancy, sorry. Lawmakers may bar you from the medically safest abortion. Women's health no longer governs abortion issues. Expect a festival of harassing legislation next year in the manner of the ban on "partial-birth abortion" -- a term made up for political purposes -- which the court endorsed in its recently completed session.

If you are a woman and discover that for years your employer has been paying men more for the same work you do, you're out of luck unless you filed a complaint within 180 days of the first time that happened. Sources: William Schneider/National Review; Adam Chandler/Scotusblog; Tom Blackburn/lufkindailynews.com; The Wichita Eagle/kansas.com.

Sentencing: Bush Commutes Scooter's Time Ya really are immune when ya work for the Pres. VERY curiously, I. Lewis "Scooter" Libby, will have to live with the criminal record and must report for probation/parole instead of prison. The special prosecutor in the CIA leak case and the White House's top staff lawyer agreed that the former vice presidential aide must serve a term of supervised release following his conviction for lying to federal investigators and a grand jury. Special Counsel Patrick J. Fitzgerald, the prosecutor, and White House Counsel Fred F. Fielding told a federal judge that President Bush's nullification of prison time for Libby did not affect the former aide's obligation to serve the part of his sentence that involves supervision by federal correction officials. Libby's personal attorneys said he accepted the White House view.

The goal of the sentencing guidelines was to rectify these sentencing disparities and treat "defendants with similar records who have been found guilty of similar criminal conduct" in like fashion. Last week, the president of the United States commuted I. Lewis "Scooter" Libby's 30-month prison sentence. His commutation statement noted that Libby's prison sentence, which fell within the sentencing guidelines, was "excessive." The president took this bold step less than two weeks after the Supreme Court ruled in Rita v. United States, at the urging of the Bush administration, that a similar sentence for a similarly situated defendant must be presumed "reasonable."

-- With one dramatic stroke of his executive pen, the president unwound more than two decades of effort to rationalize sentencing in federal courts.

-- Victor Rita was convicted of making false statements to a federal grand jury investigating whether the buyers of a gun parts kit could use the kit to make illegal machine guns. Rita, like Libby, had an exemplary background marked by service to his country. He served more than 25 years in the armed forces, during which he received 35 commendations, medals or awards. He had no relevant criminal history. Applying the federal sentencing guidelines, the judge sentenced Rita to 33 months in prison. Rita appealed his sentence on the ground that it was not reasonable in light of his sterling background. Arguing on behalf of the Bush administration, the solicitor general of the United States urged the Supreme Court to uphold Rita's prison sentence on the ground that it fell within the sentencing guidelines and therefore appellate courts must presume the sentence to be reasonable. The Supreme Court agreed and upheld Rita's 33-month prison sentence. Chief Justice John Roberts and Justice Samuel Alito, the president's reliably conservative appointees to the court, agreed with the administration's position and voted to uphold Rita's sentence. Libby was convicted after a jury trial of lying to the grand jury and federal law-enforcement officers conducting an investigation of the unauthorized disclosure of classified information concerning the employment of Valerie Plame by the CIA. High-ranking government officials compromised Plame's identity in retaliation for her husband's criticism of one of the president's justifications for the Iraq war.

Many former and current CIA officials publicly condemned the "outing" of Plame, noting that it exposed CIA operations and assets to significant risks. At the outset of the investigation, the president himself referred to it as "a very serious matter" and promised, "our administration takes it seriously."

Under the sentencing guidelines, Libby faced a range of 30 to 37 months in prison for his offenses. The judge chose 30 months, the lightest sentence in the range. Libby's 30-month prison sentence was within the guidelines, as was Rita's 33-month sentence. Yet, Libby's guidelines sentence was deemed by the president to be "excessive" while Rita's sentence was deemed by the lawyer representing the president's views to be "reasonable." So much, then, for avoiding sentencing disparity. Source: Robert S. Mahler,Special to The Seattle Times

About "Apprendi's Domain"

Jonathan Mitchell, a visiting professor at the University of Chicago Law School, has posted "Apprendi's Domain" on SSRN. Among other things, Professor Mitchell argues that in its Sixth Amendment jurisprudence, the Supreme Court has improperly tied the presentation of all facts that increase a sentence beyond a statutory maximum to proof beyond a reasonable doubt. Instead, he argues that such facts, whether mitigating or aggravating, should be presented to a jury, but that prosecutors should not be required to prove them beyond a reasonable doubt. With the Court's interest in Sixth Amendment issues seemingly not waning (e.g., Gall, Rita), Professor Mitchell advocates a provocative new approach to the Sixth Amendment. SCOTUSBLOG

International Law: Over the past few decades, international law scholars and advocates have widely supported the use of domestic United States courts to independently enforce and implement international tribunal judgments, even over the opposition of the President. The Supreme Court's decision in Sanchez-Llamas v. Oregon represents a potentially serious setback for this burgeoning movement. This contribution defends and elaborates the reasons for the Court's refusal in Sanchez-Llamas to give effect to judgments of an international tribunal absent a clear and explicit authorization by Congress or the Senate.

GPS tracking "technocorrections" is all the rage in the law enforcement and criminal justice arenas. But just like early adopters of computer gadgetry that quickly becomes anachronistic, some solutions like ubiquitous camera surveillance and GPS tracking of probationers haven't always delivered as advertised. According to today's London Telegraph:

The practice of electronically tagging criminals, suspects and alleged terrorists on control orders is being undermined every time the mobile phone system crashes, it was claimed yesterday.

***

Electronic tagging devices for people released from prison, as a "low risk," or suspects on bail, was introduced by the Government in 1999.

"The picture that emerges is one that includes regular equipment breakdowns, offenders breaching their curfew with little apparent consequence and of monitoring officers struggling to actually locate the people who they should be tagging," Panorama said.

That doesn't sound like a great track record, does it, for a program that's been in place eight years? I'm reminded that victim advocates at the Texas Association Against Sexual Assault (TAASA) more or less predicted such problems in legislative testimony critical of Texas' new Jessica's Law.

Results of habeas study released Aug 21, 2007 led by Nancy King, Lee S. and Charles A. Speir Professor of Law at Vanderbilt University, finds that fewer state convictions and sentences are being ruled unconstitutional by federal courts.

Are You Kidding Me: the Twenty-Three Year BJ The trial of 41-year-old mother-of-two, Phill Raije Rian, for sexual assault of a 16-year-old neighborhood boy concluded in August. Rian allegedly performed oral sex on the teen, who she knew because he mowed her lawn, on three occasions, each of which lasted between 15 and 30 minutes. Say, I want one. Is it illegal to receive? Rian was reportedly sentenced to 23 years in prison for these crimes. Will sanity never rule?

Registration causes more problems than it solves. Just as Ohio has toughened its sex offender registration system, evidence is building that registration causes more problems than it solves.

There is no empirical evidence that proves sex offender registries do what they're supposed to do -- keep children safe. The U.S. Justice Department is now commissioning and funding studies looking at the effectiveness of registries, Singleton says. But the evidence so far is troubling, according to Jill S. Levenson, southern regional coordinator for the Center for Offender Rehabilitation and Education and a board member of the Ohio Chapter of the Association for the Treatment of Sexual Abusers. "There is a growing body of research that documents what we call collateral consequences of registration and notification; in other words, the kind of unintended consequences of these laws that disrupt stability and interfere with the ability of these offenders to reintegrate and create law-abiding constructive lives for themselves," Levenson says. "Criminals who are placed back in the community need jobs, and they need a place to live. People aren't very sympathetic to that. But the reality is that we know that the factors that are ... associated with a good community adjustment and less recidivism in the future -- desistance from crime -- are stability in housing, social support and employment. These laws contradict what the research tells us about the environmental conditions that lead to the desistance of crime.

Also missing from the law is a mandate to educate the public -- practical information to help people avoid and survive any kind of attack or information to help eliminate myths and misconceptions about sex offenders.

"Sex offenses and sex offenders fall into a really broad range," Levenson says. "Everybody who is convicted of drunk driving is not an alcoholic. Everyone who is convicted of a sex offense is not a sexual predator." Ignorance can make the problem worse, and so can an ill-considered law. "It reinforces that myth of stranger danger," Levenson says. "These laws are passed in response after abductions and murders. They're terrible; all those cases are really frightening and troubling to all of us. It really shakes our sense of safety and security. But sex offender registration is likely to do very little to prevent those kinds of things because most children are sexually abused by people they know."

With up to 95 percent of all sex crimes committed by a person known to the victim, what does a sex offender registry actually accomplish? Nobody knows. Singleton says the one thing it does for sure is make it harder for people to rejoin society. "It drives people underground and destabilizes them," he says. "It stands in the way of a lot of offenders who aren't dangerous ever returning to their lives and getting back on their feet and being productive in our community -- which is what we should all want. "This is bad policy, and this is unfair. It's counterproductive. No one wants to hear that in this community. They want to know that they're safe. This isn't going to make them safe. It can actually be counterproductive -- it makes them more unsafe ... because it gives them a false sense of security." Citybeat.com

USA Patriot Improvement and Reauthorization Act Under a provision of the USA Patriot Improvement and Reauthorization Act, states may ask the attorney general to approve their programs for providing lawyers to death row inmates who appeal their convictions in federal courts. As the Los Angeles Times first reported last week, states whose programs are certified by the attorney general will then have the right to fast-track those appeals. After exhausting their appeals, inmates would have six months to file federal habeas corpus petitions; they now have one year, although that deadline is often ignored or extended. AG Gonzales resigned Monday, Aug. 27. Here's how the Washington Post put it the previous Wednesday -- ASKING Attorney General Alberto R. Gonzales to be the arbiter of the quality of legal representation for death row inmates is a little like asking the head coach of the Dallas Cowboys to pick the starting lineup for the Washington Redskins, just before the two teams are set to play.

Hourly Rates: Top That The hourly rates of the country's top lawyers are increasingly coming with something new -- a comma. Yet, many attorneys are still reluctant to charge $1,000 an hour. "There is a perception issue between $1,050 and $950," says Hugh Ray, a partner at Andrews Kurth LLP in Houston. "At some point, you look bad if you go too high." Mr. Boies says psychology in part has held him back from charging more than $880 per hour, noting, "When I started practicing law in 1966, my billing rate was considerably under $100." "Frankly, it's a little hard to think about anyone who doesn't save lives being worth this much money," says David Boies, one of the nation's best-known trial lawyers, at the Armonk, N.Y., office of Boies, Schiller & Flexner LLP.

Here's the rest of the story, as Paul Harvey would say: Law firms say the boosts aren't just about lining partners' pockets. They're partly a response to booming costs, which in recent years have included skyrocketing associate salaries -- first-year lawyers in many firms make $160,000 a year -- and expenses associated with geographic expansion.

For matters such as bet-the-company deals, intricate patent disputes, huge bankruptcies or complex antitrust litigation, firms often feel they can raise fees for name-brand partners without upsetting clients. Plaintiffs trial lawyers often bill on a contingency-fee basis, earning a share of a settlement or verdict -- an amount that can dwarf top rates. "It represents an opportunity cost when I am working by the hour," says Mr. Susman, Susman Godfrey LLP, who last year raised his hourly fee to $1,100. He did it in part, he says, "to discourage anyone hiring me on that basis."

From My New Favorite Blog: badcopnews.com/ --- ALBUQUERQUE, NEW MEXICO — A trucker has sued the Drug Enforcement Administration, seeking to get back nearly $24,000 seized by DEA agents earlier this month at a weigh station on U.S. 54 in New Mexico north of El Paso, Texas. Anastasio Prieto of El Paso gave a state police officer at the weigh station permission to search the truck to see if it contained “needles or cash in excess of $10,000,” according to the American Civil Liberties Union, which filed the federal lawsuit Thursday. Aug 25.

An Easy Hundred Thou? The government's terrorist screening database flagged Americans and foreigners as suspected terrorists almost 20,000 times last year. But only a small fraction of those questioned were arrested or denied entry into the United States, raising concerns among critics about privacy and the list's effectiveness. A range of state, local and federal agencies as well as U.S. embassies overseas rely on the database to pinpoint terrorism suspects, who can be identified at borders or even during routine traffic stops. The database consolidates a dozen government watch lists, as well as a growing amount of information from various sources, including airline passenger data. The government said it was planning to expand the data-sharing to private-sector groups with a "substantial bearing on homeland security," though officials would not be more specific.

Few specifics are known about how the system operates, how many people are detained or turned back from borders, or the criteria used to identify suspects. The government will not discuss cases, nor will it confirm whether an individual's name is on its list. Slightly more than half of the 20,000 encounters last year were logged by Customs and Border Protection officers, who turned back or handed over to authorities 550 people, most of them foreigners, Customs officials said. FBI and other officials said that they could not provide data on the number of people arrested or denied entry for the other half of the database hits. FBI officials indicated that the number of arrests was small. The government says the database is a powerful tool for identifying and tracking suspected terrorists and for sharing intelligence, and that its purpose is not necessarily to make arrests. But the new details about the numbers, disclosed in an FBI budget document and in interviews, raise questions about the database’s effectiveness and its impact on privacy, critics said. They argued that the number of hits relative to arrests was alarmingly high and indicated that the threshold for including someone on a watch list was too low, potentially violating thousands of Americans’ civil liberties when they are stopped.

David Sobel, senior counsel with the Electronic Frontier Foundation, a privacy organization, said the numbers “suggest a staggeringly high rate of false positives with respect to the identification of supposed terrorists.” He added that “this really confirms the long-standing fear that this list is inaccurate and ultimately ineffective as an anti-terrorism tool.” Francisco "Kiko" Martinez, a Colorado lawyer and civil-rights activist, said he was detained twice in recent years by police officers who pulled him over on traffic stops and held him in one case more than three hours, and in another, in handcuffs. Through legal proceedings, Martinez obtained police reports that revealed his watch-list status. "A driver's license check revealed [Martinez] as a possible individual having ties with terrorism," a state trooper wrote after a 2004 stop near Chicago, according to one report.

Last year, Martinez sued the federal government, claiming that he was unlawfully detained and that he was included on a watch list as a result of his political activities.

Last month, he won a $106,500 settlement from federal, state and tribal authorities. Though the settlement did not address any of the underlying constitutional claims, Martinez asserted that it "shows that I shouldn't have been on this terrorism watch list in the first place" and that "the government is misusing this so-called war against terrorism to target its domestic political opponents." Ellen Nakashima, Washington Post.

An Innovative Innocence Project -- Not everyone convicted of a crime claims to be innocent. Z will start collecting data for an online listing of all who swear upon penalty of perjury to their innocence. An application form will be sent to all subscribers for wider distribution. Thank you, reader, for the suggestion! A sampling:

Deliberate Fraud, Due Process and Civil Rights Violations;

The Entire Trial Was Rendered A Farce and Mockery;

The Police, FBI and State have Perpetrated a Conspiracy;

I Was Coerced into Pleading Guilty (e.g., Senator Larry Craig)

Grievances: The nurse saw me carrying my crutches and my typewriter to law library and took away my crutches. Damn, I now wish I'd kept that third hand growing out of my elbow!

  • I got a serve all, moved to the buildings and out to the fields after 3 years in the soap factory with High Performance Evals and no disciplinaries. What gives?

Mailbag: A War on Spin,

When exactly did the U.S. Lose its majesty and begin slipping into the vortex of social decay it is now in? Sociologists have undoubtedly asked that question many times. There are incidents in the past one could point to, both external and internal, but I suggest it was caused by a far more sinister foe—spin.

Spin is a twist (or change) in the presentation of material designed to show the material in a desired fashion. One may put positive, negative, or no spin on a presentation, thus encouraging a favorable, unfavorable, or unbiased impression on one's audience respectfully. An example would be declaring war on an abstract (i.e. War on crime, war on terror, war on poverty, etc.). By using the owrd war, politicians are using spin to further their agendas on social issues. A famous exdample is “December 7, 1941. A date that will live in infamy” -- the actual speech read “live in history.” President Roosevelt changed (or 'put spin on') the words for greater emphasis.

So what's wrong with spin? On the surface, nothing appears wrong, however, let's look closer at what spin actually is. Spin is a relatively new term for a very old technique. It's twisting or changing the way something is presented tomake it appear better or worse than it actually is. It's been known by many different names in the business and legal professions, but it boils down to misrepresenting truth for impact. In a nutshell, spin is selling a lemon.

Therein lies our foe. There have been countless political figures in the past and present that have 'sold a lemon' to the American people. Ever notice how many politicians are either very successful busienss people, lawyers, or both? One may argue management skills or wisdom, but is it really? Or is it just a matter of who has the best spin to sell the lemon? We, as citizens of the U.S. And the world have a duty to declare “War on Spin” and start looking at the truth.

G.J.S. aka Schmitty

Cataracts A class action waiting to happen

CAJA, Citizens Against Judicial Abuse, about which more will soon be written, lord willing

Homicide - To Address the question about “criminal negligent homicide” from a reader. In the Maryland Criminal Code, a murder is in the first degree if it is a “deliberate, premeditated, and willful killing.” A murder that “is not in the first degree is in the second degree.”

In the Virginia Code, unintentional killings are further defined. So that one whom “unintentionally causes the death of another person, is guilty of involuntary manslaughter.” And, “If, in addition, the conduct of the defendant was so gross, wanton, and culpable as to show a reckless disregard for human life, he shall be guilty of aggravated involuntary manslaughter.”

NB. It's late but I hope it helped.

Abuse of Power: A Tall Texas Tale

One could simply write a story about being in prison without mentioning how one got there. But that would leave far too many questions unanswered. So, one should devote a few words to the preliminary how before going on to the what of having been there. Call me Ishmael, but don't call me late for dinner. My wife and I were threatened with jail, and I was actually wrongly convicted by a couple of big words called inducement and coercion, so that I was wrongly imprisoned -- that's right, wrongly imprisoned -- for five years. My story is fearfully more common than any of you would care to believe. At least, that is, if you are not from Siberia, or Mars. The American Gulag is only just now in the process of discovery: Guantanamo Bay, Cuba; the suspension of Habeas Corpus; policies permitting torture and renditions – and the invasions of privacy, proliferation of registries, of sex offenders living under bridges -- all mere symptoms of the end of empire. Th'ar she blows!

The events that resulted in this travesty and my personal miscarriage of justice follow.

I.

The nightmare began when my wife over-reacted one Friday night in October. Over-acted might have been closer to the truth. We had just moved to Houston, Texas, and nobody knew us from Adam, or so any ordinary proverbial “reasonable” man or woman would have thought. What I'm saying is this: how could anybody, no matter how evil, hold a grudge for over twenty, much less thirty years – oh yes, evil exists.

I ran into Harriet that Autumn and she seemed to know a little too much about me than a stranger should, by rights, but then she was no stranger—as it turns out, I just didn't know it. Our thread wanders already.

By setting out in a snit to take the children to a nearby hospital emergency room at the hour that she did, Faith, my wife, could not have realized the opening which that ill-fated act would present for certain unscrupulous and mean, lazy and truly crazy foster care people and the police. The other major players in this story are the prosecuting attorneys, and being the good lawyers that they are they did no more or less than any other lawyer, which is to say, whatever the politics of the situation demanded, as well as whatever the client or superior who paid the salary or retainer or completed the personnel evaluation -- as the case may be -- told them to do and not what a proper investigation, and the evidence, would have led any truly honorable person to do. Aside, did you know that they used to call the legal profession the honorable profession? Ah, the “village people,” Faith called them. That would be Rice Village, I suppose. Not to bring any dishonor upon that venerable institution of higher education, Rice University after which the Village is named. Oh, did you know the venerable AG Gonzalez went there? So anyway, it was 10:00 p.m. on a Friday night in October: too close to Halloween for comfort if you are superstitious or anything like that. I'm not. Back, back ... to our story.

Faith was extremely, and I do mean extremely, in a paranoid and psychotic kind of way, p o'd at me for having drank too much, and yes, I had imbibed a bit much but that was all. Well, I did have the stereo playing pretty loud. It was Beethoven. But after all, it WAS Friday night. And I had been alone. That's when it happened.

Faith and the girls came home around eight. Nancy and Kris and I were goofing around in the living room and the next thing I knew N came in and said, “Dad, did you touch K?”

“What are you talking about?” I said, puzzled.

She left for a moment and came back and said, “Dad ... I think you're in trouble.”

And Faith came into the room demanding to know WHAT HAPPENED, and accused me of something terrible, of something that I had not done. Something which I vigorously denied immediately. To no avail then. Or ever.

And so that's how they left the house that Friday night in October. Nancy had been in the room the whole time with K and me. She knew something was not right and protested vigorously about going to the hospital. More than me. Me, who probably said something stupid like, “fine, nothing happened, so go ahead.” Little did we know what evil fruit that innocent effort to ascertain WHAT HAPPENED was to bring to bear upon us. Or was that effort quite so innocent? Water under the bridge.

Alas, in any event then, when they got to the E.R. this whole thing just happened. The entire family, Mom (Faith), big sister (Nancy) and “victim” (Kristin) were literally forced, coerced, threatened and made to wait into the wee morning hours, and consequently became completely sleep-deprived before anybody even looked at them. Topping that, they were threatened and told not to leave or they would all be arrested. All of this, simply because Faith had been curious, or furious or both.

Which is to say, what had our five-year-old, Kristin, said? And had she been completely truthful in what she had told Faith. Faith, obviously, who was a grown woman, a mother by choice, and not sexually naïve. Not in contrast to Kristin certainly, who was just getting ready to turn six. Faith immediately thought the worst. The worst, of course, about which Kristin absolutely could not have had any clue. The worst, which alleged happening, if mom had given even an ounce of thought to it at the time, could not, objectively, have occurred given the contemporaneous and immediate readily observable, facts. Facts that a simple and common sense visual investigation among girls could have readily revealed. Period. Which fact, later, actually did become evident to Faith, but by then it was already too late.

I, on the other hand, despite my relatively pickled condition knew at once, because of my experience as a lawyer in a previous life, that what our precious little daughter had done then and there was to allege that a rather serious criminal infraction had occurred and that I committed it. Even a touching, no matter how slight, is a serious matter these days. The first year law student will learn that just a slightest touch might constitute “assault and battery” according to something called “common law.” They call it common because being unwritten and not “statutory” or legislated it is judge-made and simply handed down from the bench over time. Judges at one time had a lot of power. They still do.

To Be Continued ...

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