Tuesday, January 24, 2006

Keeping in Touch With a Parent in Prison

I am not a big fan of the NY Times Editorial page (lately my dedication to its other pages hasn't been to high either.) Nevertheless when the old gray lady is right I think she deserves the credit.

This is definitely one of my pet peeves. Most people are not convicted of a crime while being housed at the Nassau County (NY) Correctional Center. Nonetheless they are cut off from those that can most help them and can most counsel them by a series of what I think are very unfair rules that make it nearly impossible for the poor (and like it or not it is usually the poor who wind up in jail, the rich can make bail)to maintain important relationships at a time when they matter most. These rules limit phone time and jail visits. They schedule visits for inconvientent periods and require long waiting periods before the inmate may be seen. In all it is very hard for all but the most motivated family to see a loved one.

Here is the NY Times take on the issue:

"New York Times
January 14, 2006


Keeping in Touch With a Parent in Prison

One way to cut down on the number of inmates who end up right back in
prison shortly after being released is to make sure that they preserve their
ties with their families, especially with spouses and children, while they
are serving time. But keeping in touch is often impossible for inmates and
their families because of state prison systems that earn huge profits from
inmates'phone calls by forcing the family members who receive those collect
calls to pay usurious rates. As a result, a family must often choose between talking
to a loved one in prison and putting food on the table.

A bill introduced in Congress by Representative Bobby Rush, Democrat
of Illinois, would help end this shameful practice by requiring the
Federal Communications Commission to set fair rates for interstate phone calls
made from prison. The bill will surely face fierce opposition from the
telecommunications lobby and from state prison systems that have grown accustomed to gouging the poorest families in the country to subsidize some prison-related
activities. But the current arrangement is both counterproductive and morally

State prison systems typically use telephone setups that permit only
collect calls, made through providers that keep a monopoly on prison telephone
service by paying the states a "commission" - essentially a legal
kickback. The kickback does not materialize out of thin air. The people who receive
the phone calls often pay as much as six times the going rate. Not surprisingly,
the costs discourage inmates from keeping in touch with spouses and
children who may live hundreds of miles away and find it difficult or impossible to

Federal prisons use a significantly less expensive debit-calling
system, which lets inmates use the money accumulated in computer-controlled
accounts to place easily monitored calls to a limited group of phone numbers. The
Rush bill would require prisons to use both collect-calling and
debit-calling systems. It would also prohibit providers from paying kickbacks to
prison systems, and would require each prison system to allow more than one phone
company to enter the market. In addition, the law would not let prison phone
providers refuse to place calls to phone numbers served by rival companies.

Prison systems are likely to argue that the current arrangement is
just fine because it helps pay for programs that benefit the inmates. But the
high phone rates are actually a hidden tax on people who already pay for
the prisons through their taxes. Beyond that, the states should not be in the
business of bleeding low-income families - and fraying already fragile family ties
- to pay for services that the state itself is obligated to provide."

That Lawyer Dude:

In short, when some one is arrested but not yet convicted, the government should not be able to stamp out that person's right to communicate with his family and lawyers.
After all, who do most of us turn to when we have problems? Our families. However prisoners have no lobby in the legislature. It is almost painless for politicians to deprive prisoners basic human rights and needs to "save money", after all they are accused of a crime, what do they deserve? We deny accused prisioners ample visiting hours; jails make visiting unpleasant and inconvienient; We make communication difficult and unfairly costly.

I do not suggest that jail should be a pleasant circumstance, however to do this pre-conviction seems unfair. The truth is, most people are in jail pre-trial, because they cannot afford even a minimal bail, not because their alleged crime is any worse than someone who is not in jail. People who work in the jails make calls from the facility all day long. Not all calls are business related. We pay for those calls. Is it so unfair to ask that the inmate pays what we pay for the calls they make?

We would do well to remember the words of President John F.Kennedy at his Inauguration. "A people are not judged by how they treated the best of us, but rather how they treated the least among us."

Saturday, January 21, 2006

And Now For Something A Little "Kinky"... Friedman That Is.

It is Saturday night and I am officially feeling old. Instead of my planning a night out all night as I did in my youth, I am waiting for my oldest son Salvatore to come home from a study-party gig. I remember them. 33% study, 66% party. Midterms senior year of High School. The last "important exam" until "Freshman Finals." Even now, most of the Senior class at Syosset (NY) High School is not taking them too seriously. I think it frustrates parents and teachers, but that is also part of the idea. I will wax poetic about senior year some other time tho.

Anyway I am leafing through my newsfeeds (my favorite feature of Opera 8.5 which is my internet browser of choice) and I come upon an interesting site that has polling information by following a link to this post by Ernie the Attorney. Now like I said it is Saturday night and I am just surfing around, so I look beyond the post and go to the actual site. On it there are a lot of really cool political polling information. I start to look at all the polling information there and I see a Texas poll about name recognition and positive feeling about the pols running for Texas Governor. I notice that the candidate with the highest name recognition/approval combo is an old name I remember from my youth. Kinky Friedman.

Kinky was part Weird Al Yankovic and part Frank Zappa. He had a band called the "Texas Jewboys" and they sang country music. He was good at lampooning the establishment and yet there was a strange truth in his music that made you think even while at a fraternity party.

Just the name of the band alone made him someone I liked. My Alma Mater, Tufts University was (and still is in some ways)a bastion of liberalism in the 1970's was at the start of the political correctness movement. I loved Tufts, but hated the PC jackasses, and still do. Seems like Kinky did too. (Note to self, write a post someday on how PC is the liberals attack on liberty making them no better than the Neo-cons*.)

Anyway Kinky is running for Governor of Texas. No way. Way! It is true. In that populist Jessie Ventura/Arnold Swartzenegger kinda way. He is running as an independent. I go to Google (way to go guys, keep fighting the government on our right to search the internet free from big brother watching us), and throw in Kinky's name and I find this interesting story about his campaign. It's a little old (August'05)but it is pretty good.

Now I think there is a definite difference between the Three populists. Arnold is unfortunately surrounded by too many people who are Neo-cons and thus they keep pulling him to the NEO-right. (Note to Arnold: You are never going to get to run for President of The United States of America. Further, as long as you are married to Maria Shriver, the Neo-cons are never going to accept you. Hence you need to get back to being an iconoclast who put liberty and free trade in front of politics, or your going to serve one term.)

Then there was Jesse Ventura who also had some bad advisors. His were on his left. Moreover Jesse wasn't really governor material. Mayor yes, Governor no.

But Kinky, now here is an interesting candidate. Especially for Texas. Minnesota is an iconoclastic state. California well... You know what they say, California is like a breakfast cereal everything that's not a nut or berry is just a flake. But Texas was the Original, original. It was a place where people went when they ran out of room in their own state. It is how George Bush the first (good ole '41) got there. It was the most iconoclastic state ever. It gave us LBJ, and Barbra Jordan. It gave us Ann Richards and George W. Bush (number 43). It is the wild west and then some. Now it gives us KINKY FRIEDMAN. His candidacy could break the mold. Brilliant, sarcastic, and evidentially serious.

Now I am not endorsing Friedman. I do not even know what he stands for. I am just thinking that anything different in politics especially Texas politics could be a good thing. Problem with Kinky is that his sense of humor gets in his way. I really wonder if the campaign is for real or not. I think however it is.

Now getting elected and serving are different skills. Independent and outside party guys have problems once they are in office. They have a fan base, among the electorate but no base in the statehouse. That means having a hard time delivering on their promises. What I like about iconoclasts is they infuse new and popular ideas into these closed political circles.

Part of the problem with American Politics today, is that regular people are on the outside of the government. Pols hang with other pols (I am including unelected pols like lobbyists and pollsters and the like in this group). They are really out of touch with the people they serve. The media stands outside of the circle (usually) but they don't really live with the rest of us either. What is left is the rest of us having no one to vote for. No one who we relate to. No one who is carrying our ideas. Hence iconoclasts for all their frustration in the administration of the executive branch provide the safety valve of airing the public's ideas frustrations hopes and fears. Sometimes they bring these ideas into being, sometimes they bring them up for others to carry the day a little later. Either way, American politics is better for the fact that the Kinky Friedmans of the world want to run and do so, and who knows sometimes even win.

Well, so much for Saturday night ruminating. That Lawyer Dude, over and (yawn)out.

*Neo-Conservative aka Neo-Con is just an old liberal who has been mugged. A That Lawyer Dude Definition.

Monday, January 16, 2006

Ms. Underestimated: GA Girl Cries "I'm sorry" for Flag Display

Ms. Underestimated: GA Girl Cries "I'm sorry" for Flag Display

Ok, How did I miss this one.

Lets begin with the following given if we may: I love the flag of The United States of America. Let me repeat this I LOVE THE FLAG OF THE UNITED STATES OF AMERICA!
I do not love the flag because it is a work of art. I do not love the flag because it is made of particularly nice material. I do not love the flag because it has interesting geometric patterns.

I love the flag because of what it embodies. I love the flag because of the form of government it represents. I love the flag because of the freedom it guarantees. I love the flag because it is such a mighty symbol for all the things I stand for. I love the flag because in our country, someone can denigrate the flag and it still means everything I just discussed because when someone denigrates it, without penalty, it flys higher still. In other words: burn it, stomp it, curse it, hate it, you can never kill what it stands for, as long as those that love it care enough about it, to let you do it.

Now I have had more than one chance to debate people who think that flag denigration is the equivilent of treason. I am of another thought. I believe that flag denigration is the equivilent of an acknowledgement or even an ersatz respect for the flag's symbol of the guarantee of the freedom of speech.

When someone burns or stomps on a flag, it makes me angry. When someone wears the flag as a patch on their jeans I have to admit I wonder about their good taste. When I see a tatered flag flying I usually will go up to the person in charge of flying the flag and remind them of how to fly the flag, and try to get them to replace it. I have even bought a couple of flags for people who love them so much that they'd rather fly a tattered flag than not fly one at all (often these people are the widows of Vets who are too old to be able to afford to replace their flag, but are flying it to remember their loved one and his service to our nation.)

However if we are ever stupid enough to outlaw flag denigration, then I will be the first to suffer arrest for burning her. I have too much respect for her, than to let those who would pay lip service to her symbol of freedom, quiet her powerful voice of dissent.

The post from MS. Underestimated is about a little girl (age 9)who loved the flag so much that she and her little sister painted one on a rock. Can you imagine the pride she must have felt in her accomplishment? Can you imagine how much pride she must feel in her flag to have taken the time to paint the symbol of freedom on this rock? Can anyone tell me how this little girl's work has tarnished the flag. Can you imagine what she feels now?

I have news for the Town Attorney in Duluth Ga. If someone paints a swatstika on a building and you prosecute him for the speech, OUR FLAG PROTECTS HIS SPEECH!!!
Now he may argue that his speech is being singled out as graffitti. He may claim that your refusal to take down the American flag makes his point that patriotic speech is protected and his is not. I do not think that is such a colorable claim. There is no doubt that the city could accept an American Flag as a gift and yet be in its right to refuse to accept the swatstika as a gift. No one can stop him from flying his disgraced flag (which by the way is a Hindu peace symbol misappropriated by the Nazi's) on private property. However he cannot force the government to fly it for him.

Guys who wave the flag are nice. The 81 year old vet who objected to the "rock" flag display in Duluth Ga. is proud of his service and proud of his country. He fought for the nation that flys that flag. The sad thing is, he just doesn't understand what he fought for. He has no concept of the Freedom that the flag represents.

If you love this country, you have to accept as part of it's fabric that someone else can come in and say they hate it. If you love this country, then you have to accept that someone else can come along and criticize it. If you love this country, then you have to accept that someone will come along and want to burn the symbol of the very freedom that gives him the right to burn the symbol to begin with. If that seems like a tautology, then I dare say you just don't get it.

There are many ways to show how much you love this country. Fighting a foreign enemy is one way. Fighting those that want to limit our liberty in the name of our honor is another. Today, in this column, I am fighting that fight. If I was on the city council of Duluth Ga. I would have moved that we place a small fence around the rock upon which that little girl's flag it is painted. This way the only people who would step on it are those that mean to do so. I would look at it as often as I can, and I would remind those that did step on it purposely, that the flag is so great, it lets them do that, and still keeps its honor.

Sunday, January 15, 2006

A Marin Luther King Day Tribute: A Day When The Dream Came True

If you want to know how I come by my libertarian streak, you would have to know my uncle Mario. He was a founder of the NYS Conservative Party. He was a cop and a hero airman in WWII. In the days when I first became interested in politics, he was my mentor. Though he didn't know how it happened, he is probably most responsible for my wanting to become a criminal defense lawyer. (Always be careful what you say around children.)

Back in a day when to be Conservative also meant to be against equal rights for minorities, my Uncle Mario stood out. He was for equal pay and equal treatment. He honored the right to vote and stood for most of the things that Martin Luther King spoke about in front of the Lincoln Memorial on the day he gave his "I Have a Dream" Speech. He passed those ideas on to me and to many of my cousins, and to other conservatives too.

Today is Martin Luther King's Birthday. In memory of him and the equality between the races that he stood for, and in memory of my uncle Mario V. Colleluori, I want to pass down to all of you, my dear readers, a family story that I heard told many times, but that has been beautifully memorialized by my cousin Thomas Ward Colleluori. I have linked you to the Congressional record wherein the original of this story lies. It has been almost 9 years since Tommy wrote this, but every year, I remember it and I want to share it all with you. Here it is, in his own words:

"My name is Thomas Ward Colleluori. I am very proud to be the grandson of two WWII veterans. My Grandpa Mario Colleluori was a Radioman/Waist Gunner on B-24 heavy bombers with the 15th Air Force and my Grandpa Frank Ward was an Infantryman with Patton's 3rd Army. Grandpa Frank passed away in 1991 and Grandpa Mario passed away in February of this year.

As I got ready to write this essay, I thought about the many stories my grandfathers told me about the war. As a little boy, I always enjoyed these stories. Now, at the age of fifteen, I wanted to remember everything they had told me. More importantly, I want to apply the lessons they taught to what I do in my own lifetime.

Both my grandpas volunteered for the war at the age of 17. Grandpa Frank grew up in Brooklyn and volunteered for the Air Force but was sent to the Infantry because he was color blind. My Grandpa Mario grew up in Queens. He started out in the Infantry where he became an instructor at the Officer Candidate School but he wanted to see combat. He tried to transfer to the Rangers and Paratroopers but O.C.S. wouldn't let him go. His persistence finally paid off. He went to the Air Force when he found out that O.C.S. could not block that transfer.

My Grandpa Frank entered combat during the Battle of the Bulge. He was assigned to carry the Browning Automatic Rifle but was later given a regular rifle and a satchel charge when his unit went through the Ziegfried Line. Finally, towards the very end of the war, when attacks were expected by German tanks, my Grandpa was made part of a Bazooka team. I remember my father joking that his sergeant must not have liked him very much because he kept giving my grandpa the heaviest weapons and the most dangerous jobs. Grandpa Frank said his sergeant gave him those responsibilities because he trusted him.

My Grandpa Mario began flying combat missions over Austria, Poland and Germany in January of 1945. He flew 23 missions and had to crash land several times when his B-24 was badly damaged by flack. His commanding officer was a future U.S. Senator and vice-presidential Candidate named Lloyd Bensten!

My grandfathers won a lot of medals and ribbons. My Grandpa Frank even won the Purple Heart, but neither one ever bragged or told stories about how brave they were. Sometimes they would even say how scared they were and then they would usually make a joke.

I think my favorite story concerned my Grandpa Mario returning from a mission in a badly damaged plane. German fighters began to attack his helpless B-24. My grandpa called into his radio, `Angels, Angels we need you!'

His call to American escort fighters was answered by a P-38 `Lightning' and a P-51 `Mustang'. The two American fighters chased off the Germans and the `Mustang' pilot escorted the limping bomber all the way home.

My Grandpa was impressed by the courage of those two American fighter pilots. He always said that he admired the sense of duty that they displayed in attacking a larger German force in defense of one B-24. I remember him saying that he was amazed at the way the P-51 pilot flew with his wing tip `almost touching the waist gun' of the wounded bomber as he escorted the B-24 to a safe landing. My Grandpa would end the story the same way every time. He'd tell how the Mustang flew so close that he could see the pilot's black face and that it was an African-American who saved him from being shot down that day!

In later years we learned that one of those brave fighter pilots was a `Tuskegee Airman'! If not for that individual American's character and determination to overcome prejudice, my Grandfather might not have survived the war.

After the War, both my grandfathers continued their service to their country. My Grandpa Frank became a New York City Fireman and Grandpa Mario became a New York City Motorcycle Policeman. Later Grandpa Mario became a School Board Member.

I have learned a lot of lessons from the stories my grandfathers have told me about WWII. I will never judge anyone by their color or religion. We are all Americans and we must all help to keep our country great. Another lesson is that it is important to take responsibility seriously. If somebody is depending on you, you have to do your best.

I think the biggest lesson I have learned, what can be called my Grandpas' legacy, is that as an American I have a duty to my country and my community and that when there are really big problems, doing that duty is more important than anything else.

My grandfathers emphasized the importance of setting goals. This past year, their example inspired me to dedicate myself to two major goals.

My first goal is to attend the United States Naval Academy and to play Football at Annapolis. The second goal is to become an officer with the United States Navy S.E.A.L.s.

Many people have said that I will never be able to achieve these goals but I am convinced that by following my grandfathers' example of perseverance, courage and responsibility I will be able to carry on their legacy of service to my country.

I am privileged to live in a country that was made great by the sacrifices of countless Americans who, like my grandfathers and that anonymous `Tuskegee Airman', chose to do their duty.

When I visited West Point two years ago I learned that the motto of the cadets is `Duty Honor, Country'. That made me think of my grandpas and I felt proud!"

That Lawyer Dude Learns a New Skill: Check Out Our New Blog Roll

I finally figured out how to add a Blogroll to my site. I know that most of you think that "after 2 years it shoulda happened long ago" but I feel like this is one of the biggest accomplishments I have achieved since my first felony trial!! Technophobe no longer!

Anyway the Blogroll on the right is made up of some of my favorite legal and political sites. It is not a call to all the sites that I read, but it does link to the sites that I think laymen and lawyers can both use. You should check them out.

I will be adding links to my other blog Long Island (criminal)Trial Law in the near future (maybe later today) if for no other reason than to continue to show off my new skill. Lawyers and law students will find most of these blawgs listed there too. There will also be some of the more technical legal stuff there, as well as links to sites that link or provide primary sources (such as decisions, briefs, and motions.)

I hope to have The Positive Review, our non-legal blog back up before February 1st.

Saturday, January 14, 2006

The Definition of A Profile In Courage in the Vermont Judiciary

I am going to recommend that Judge Edward Cashman get an award for heroism. Cashman is a small town district court judge in Vermont. He has angered the entire Neo-con establishment, because he had the temerity to impose a sentence that was meant to ensure that a 34 year old sexual predator with the mental age of a 12 year old, never harmed someone else against.

Whether you are a fan of long jail terms for sex offenders or not, it seems axiomatic that if someone is convicted of a sexual crime on a seven year old, that person needs more than just jail. The State of Vermont however has a rule, that if someone is a low risk to offend again, it doesn't offer that person treatment. It is a cost saving thing I guess. It seems short sighted but this is the government we're talking about here.

In the case that Ed Cashman had before him, he had two choices; a short sentence and probation with heavy offender treatment, or a longer jail sentence that would turn the offender back in the community in 2-5 years, without treating the underlying causes of the sexual urge. In other words, a seven year old already had her life destroyed. If Cashman did what was popular, he was sure that the offender would offend again. If he did the popular thing, his job would be secure, but his community would not be.

Now I can hear a bunch of people say "well at least things would be safe right now if the guy was in jail." True, execpt Cashman has the power to order house arrest. He can also jail the guy for life if he acts out just once. He can set very stringent requirements on the defendant's behaviors and movements. Most importantly, he can insure that the defendant gets treatment that will further lessen the chance that this low risk defendant will become a recidivist. The one thing he could not accomplish was getting the treatment if he put the kid in jail because of the policy of the Vermont Corrections Department(an executive branch department.)

Now what does this Judge do. He loves his job. He is good at it. He is considered a hard case judge and a republican conservative. He is a conservative Roman Catholic, who served in Vietnam (I think 2 tours.) He is a former prosecutor (who my friends in Vermont tell me was the bane of defense attorneys.)

If he wants to keep his job he warehouses the kid and complains on the record that the "jail" gives him no choice but to incarcerate the kid without getting him the help he needs. No one will read the record, and when the kid gets out in 2-5 years, he is right back where he is now, but with somebody else's kid. Ed Cashman could not live with that.

Cashman would have loved to have sentenced the kid to three years, not to be punishing, but to secure the community while ensuring the kid got the help he needs. The Dept. Of Corrections forced his hand. I wonder what the little girl who was assaulted would say if she had to make the choice to incarcerate the guy who raped her for a short time and seeing another child hurt in later years, or having the guy stay out now but being much less dangerous to another kid?

Cashman has be boiled in oil by the Neo-con bloggers and the MLM nut jobs like O'Reilly and others. They incorrectly reported that the judge had decided never to punish anyone ever again and that he had gone soft in his old age. Nothing can be further from the truth. The Boston Globe finally printed the truth about the judge. He never said he didn't believe the defendant should not be punished. He said that punishing the defendant wasn't enough.

When reporting about courtroom news, it is dangerous to comment unless you are there, or have read the transcripts. Nevertheless if you are going to call a judge "The worst Judge in the USA" and call for his removal from the bench, it would help if you have read the transcript. It makes it harder maybe to make your case, but at least you save yourself from charges that you are bombastic and rushing to judgment. And you would think if anyone should be careful about bringing false charges against someone, it would be O'Reilly. Boy Billy, how quickly you forget. I won't hold my breath waiting for you to apologize and issue a retraction. You're just not that kind of conservative are you Billy boy?

Any way. In 2007 the NYS Association of Criminal Defense Lawyers will give out the Thurgood Marshall and the William Brennan awards. Maybe they will consider giving one to Cashman. If Carolyn Kennedy Schlossberg is reading this, might this not be just like the biographies in your father's wonderful and inspiring book.

Meanwhile back in Montpelier, the Governor and other legislative blowhards hiding under the self given label of conservative call for the Judges resignation. Gutless wonders. How about you guys take some responsiblity. How about you all admit you screwed up and permitted an impossible policy that handcuff the people who are in charge of making the best decision. How about, before deciding on penalties and policy, you talk to some people who might know something about what is really needed to properly deal with tough cases, instead of just giving platitudes and longer sentences to molify the O'Reilly's of the world.

Why is it so hard to find leaders who know how to lead. Maybe Cashman ought to run for Governor.

UPDATE: For a really good and accurate depiction of the case, the Judge and the law and who is really the problem in this matter go here and read Peter Freyne's insightful article based on fact not heresay and innuendo.

Thursday, January 12, 2006

The Life and Death Of A Criminal Defense Lawyer

Alaska Attorney Bill Bryson, was a giant of a man and a giant of a lawyer. He was also my friend. He is dead, of a self inflicted gun shot wound. To have met Bill was to have adored him. He was erudite and yet plain spoken. He was funny and personable. He was urbane but yet country. The obituary tells of his struggles and successes.

I met Bill in early 1990's at an NACDL meeting. I was drawn to his laugh and sense of humor. NACDL meetings were a chance to blow off steam and learn to be a better lawyer at the same time. They bring together America's best criminal trial lawyers all into one place. The meetings are filled with information, technique and a little character building. The evenings filled with food and drink.

Laura Webster said that "the tradition of the criminal defense lawyer is a narrative one, and the education of the criminal defense lawyer has always been a uniquely oral experience." As they drank the "old-timers" would tell "war stories" of their trials. In the drink good humor usually followed. We novice lawyers would listen to these "courtroom warriors" pick apart each others work in delightful glee. They were funny and instructive. None more so than Bill Bryson. It seemed that Bill, even as he would fall slowly into inebriation, remembered that the novices among us were learning. He was teaching as well as remembering, instructing and "kibitzing", mentoring while teasing.

Many Criminal trial lawyers drink too much. Maybe it is a hazard of the work. It is hard to leave a case behind. People think that alcoholics lack willpower... No they have more will power than they know what to do with. They spend their days willing things to happen that by nature's law shouldn't occur. They spend their nights paying for it, unable to unwind, unable to let go. I have watched so many of my friends mentors and heroes tear their lives apart with alcohol and stress, cigarettes and coffee, and too many other combinations of "vices". All in an attempt to forget the case that sent their client to jail wrongfully, or to relax after a day of forcing someone who doesn't want to understand, to understand. We have spoken about the guilt and the conscience and the inability to let it rest here. It can hound a person until the only way to make it stop is to drown it.

NACDL meetings were a great way to get rid of it. You could be the person you needed to be, because the others there understood it. They got it. They lived it too. There aren't many who understand. I am not sure we do either. But we can sympathize without pity, we live it. At least we "get it." I always come back renewed after an NACDL meeting because of that fevered pitch we bring ourselves to by seeing our colleagues, sharing our stories, enjoying some downtime.
I think Bill could have used a NACDL meeting this week. Unfortunately the next one is a month away.

I am older and wiser now. I am sitting at my desk and I am still working, but in part that is about the need to mourn an old friend. In part it is also to not let his death be in vain, but to serve as a warning to the Novices and experienced alike that what we do should never become who we are. That our duty to our clients ends at the beginning of our duty to our families and our God. That we can offer those whom we fight for, only ourselves, and if we allow ourselves to become nothing, then what can we offer those that need us?

I wake every morning often tired from working so late the night before. The work doesn't stop coming. That is a good thing in that if it did, I couldn't pay the rent. Sometimes I come home just before dawn, nap, and catch the morning sun and do it all again. Other days I leave before dawn and come home again after the sun sets. When I am in trial, I can go days without noticing the sun's movements at all. i mean to exercise, but there is so much to do, that by the time I get to it, I don't have the energy to do it. It isn't healthy. So dear readers I am going to leave you now. I am going to find a treadmill and sweat for a bit. It will hide the tears that I am going to shed for my friend, Bill Bryson, and all the other friends I have lost who have fought the fight for justice. Tomorrow I will hit my knees at our local church, and pray for those guys and gals, and for the ones for whom it is not yet to late.

Monday, January 09, 2006

When Fear Runs The White House

A number of fellow bloggers have been writing on the President's decision to wiretap domestic phone calls of suspected terrrorist sympathizers here in the US. The libertarian and lawyer blogs have been disappointed or even outraged. Our Neo-Conservatives, have of course rallied to the Presidents side. They have joined in the call for an investigation into the whistleblower. Of course like the Neo-Cons in the White House they are calling all of us who are upset with the Presidents decision either blind to the terrorist threat or terrorist sympathizers. Liberal bloggers are calling for the President's impeachment.

I have not been comfortable with any of it. I do not think the President or his merry band of men are presently using the NSA to spy on domestic enemies of the administration. I also would not put it past members of his administration. Zealots often have persecution complexes and paranoia can lead to overreaching. Hence the fears of the Liberals and even some of the Libertarians.

On the other hand blinding approval of this presidential overreaching is just as bad. The White house was wrong to follow this program. The FISA court was available and a near rubberstamp of most administration wiretap warrent requests, if they had a problem with a warrant then maybe that warrant needed to be rethought. You see the FISA court is sufficiently out of the White house "paranoia circle" to determine a proper request from a request that over-reaches.

Critics of the President point to his discomfort with the "rules" of government. Whether he called the US Constitution a god damn piece of paper, or just finds it easier to do things his own way, his "my way or the highway" and "either you agree with me or you are a traitor" additude just reminds too many of us of our Watergate days.

I am a lawyer by trade, but a Historian by training. I read a recent post on the Uncivil litigator which got me thinking.

I don't agree with everything in the blog. I do however think that the President's lack of legal training, and his failure to appreciate the rights embodied in the Bill of Rights clearly indicates that he must be carefully overseen by an active congress.

Look, it seems clear to me that the president is interested in keeping Americans alive and well. He is very paternal that way. It is commendable that he wants to make us safe from terrorists.

It is also not a good idea to over limit freedom in exchange for peace and security. The President has allowed fear to overtake America, and with that undo much of what we appreciate about our political culture. It is also clear that the President does not understand that 9-11 was not the only time that America was attacked from within. The Weathermen in the 1960's were bombing things all over. They were also helping stage havoc at student lead riots throughout the nation.

As historians looking back, few of us have been impressed with the Johnson/Nixon response to those domestic terrorists. Spying on them became spying on anyone who disagreed with the Executive branch. In fact the only thing I can deduce is that the cutting down on Freedom caused us to have no more security. We are a jittery nation. In surrendering our Freedom we have allowed the cretins of the world to undermine the greatest democracy in history. So many of us are ready to be searched and otherwise inconvienenced. Now the Administration wants us to consent to be bugged and to allow information to be gathered against us and held by our government. We have forgotten everything Ben Franklin tried to teach us. The problem we have is that it is only a short leap from investigation enemies of the state to investigating enemies of the administration. The GW Bush White house has shown little patience with anyone who disagrees with them. That is especially true as to anyone who disagrees with their conduct in their "War on Terrorism."

Now it comes out that the President proceeded without legislative support to go after telephone conversations of Americans on American soil without getting a warrant from the most warrant happy bench in the Federal Judiciary (the FISA Court).

Is it a constitutional breach? Probably not. Is it legal. Maybe for about a month after 9-11 Without a doubt it is not legal for longer than that. Domestic spying without a warrant and without a change in the law is not legal long term.
Even if the technology was a problem, it needed to be addressed in a public forum. The law is capable of keeping up with the technology.

So what do we do? I think the President needs to apologize for the breach. Explain to the American people that the program was not about his overreaching for power under the guise of protecting us, and acknowledge that he is acting the way he is because he cares about us and doesn't want to see another 9-11 on his watch. Then he needs to acknowledge that being the President of the most freedom loving nation on earth, means that most of us would rather be exposed to some level of risk than forfeit our freedom. He needs to say that he understands why we are upset with the overreaching and that such concern is not a misunderstanding of the terror threat but a fair reaction to his administration's response. That he will work to change laws he thinks are hampering the war on terror through the normal political channels and that he will be very careful and limited when trying to protect us. He needs to acknowledge the passing nature of the administration's initiatives so that the rest of us do not believe that all these changes will last forever. He needs to provide outside oversight when he acts the way he has been acting.

I am sorry Mr. President, If I wanted to live in a state safe from the world's harm, I would go to Switzerland. I want to live here. I want you to do your best to limit the danger, without it infriging on our right to privacy in our daily lives.

That is what I think, tell me your thoughts by leaving a comment below or writing to me at www.colleluorilaw.com.

Sunday, January 08, 2006

A Few Musing From Around the Blogosphere

As I read through my Newfeeds in Opera I get a bunch of ideas that I want to share with you all. Unfortunately by the time I have worked all day and read through the 75 or so blawgs, I am out of time to write. By the time the weekend comes around some of the stuff I read gets stale. Anyway I am going to try to do something pithy with this weekends best feeds and see if you like it. So HERE WE GO:

Family Law Profs have a note about a recent Georgia legislative proposal: reduce child support payments if the "out of custody" parent spends more than 90 days with the kids. The post can be found here. Of course I can see this as being a problem with deadbeat parents who will spend all the time they can as long as they don't have to give any money to their ex-spouse. I have a better idea. If the "out of custody parent" spends more than 90 days with their kids, they get to take a tax credit for the dependent child.

Professor Berman over at Sentencing Law and Policy offers very complete coverage of Tennessee v. House. House is a death penalty case that asks "what right a defendant has if DNA evidence indicates that he may actually be innocent." House's conviction was definitely based on circumstantial evidence. It was also pretty damaging circumstantial evidence. Part of that evidence was blood found on his pants that matched the victims. Of course it turns out that the prosecutor's poor handling of the evidence may have (and probably did) contaminate the pants with the victims blood. (Now before you all go saying that I always fault the prosecution, if the defense had the only chance to preserve a piece of evidence and screwed it up I would be just as hard on them.)Thereafter the prosecutor's theory that the defendant's semen was on the victims panties and nightgown goes down the tube when we find that previously unavailable DNA testing proves the seman belongs to the victims husband (who was a suspect too, originally.) Now add on that the defendant has a prior violent sex history, and that he's a stranger to the town and you can see where there might be a conundrum. The constitutional problem is that there has been no ruling that innocence is enough to negate a jury finding of guilt and sentence of death. Fundamental fairness (which is what most of us would like to think our Constitution is about) would seem to dictate that there is a right to a re-trial and a right to have the evidence evaluated. Constituional stare decisis does not dictate that however. On the other hand if one believes the Bill of Rights should be interpreted to protect the liberty or the individual, then it seems that equities are in favor of the defense. This is a tough case however. If you really want to learn about many of the issues facing the SCOTUS and law in general in a non arcane case, look at Professor Berman's blog on this case. Read all the primary and secondary sources he offers you. Too bad I am going to be busy this week, it would be nice to go to DC and see the court work with this case.

Blonde Justice gives us a look at how cases get assigned in her office at this post. Blonde works in a vertical system and she got to handle her cases from start to finish. I worked in a horizontal system. I would have preferred a vertical system but I can tell you the cases got to the best lawyers anyway. Not only that, but the cases did get attention between dates. Nevertheless, I still think vertical is the way to go.

Blonde's discussion is both interesting and important in light of the SCOTUS decision to take on U.S. v. Gonzalez-Lopez which asks: should a district court's denial of a criminal defendant's qualified right to be represented by counsel of choice require automatic reversal of his conviction? The case is an interesting set of facts. I feeel that short of a very good reason, a Client should be able to have any attorney he can pay for. I think that the Sixth Amendment's right to counsel means counsel of your choice if you can afford it. The reasons that the district court posits in refusing to allow a pro hac vice admission just don't cut it for me. The attorney they denied was probably overly aggressive. Get into a scrap with the US Government and you will understand that over aggressiveness is nearly impossible to avoid much less attain. There is no time to go through all the twists but suffice it to say the judge in this case, by his impossible pro hac decisions predestined the conviction here. The ruling that really bugs me is that co-counsel cannot communicate with co-counsel by note passing during cross. Hey you know, a criminal trial is not grade school. It is about protecting someone's rights. I want the help of any co-counsel I have. I have seen this before and just will never understand it. In the unlikely event I ever become a judge and I make a ruling like that (assuming that the lawyers didn't disrupt the proceedings) somebody show me this column. You can read all about this case by going to the Medill Law School SCOTUS site.

Ok, I still have to get a couple of things done over at Long Island (criminal) Trial Law, and there are Christmas decorations to take down, but I have only one more thing to say:

Since when did Ted Kennedy think he had the right to question ANYBODY ELSE'S CREDIBILITY? I mean really. Before you can question someone's credibility shouldn't you have some of your own? Hey Teddy what did ever happen to Mary Jo? When Teddy tells the truth about that, he can start commenting about the credibility of Judge Alito.

Monday, January 02, 2006

A Poll on Domestic Spying

A new feature of That Lawyer Dude blog... a poll! We here at www.thatlawyerdude.com want to know what you readers are thinking. Hence we have written a new poll with the help of our friends and collegues at Quimble.com. If you want to elaberate on your vote leave us a comment below.

Did the person or people who leaked the information about the NSA wiretap scandal do the nation a service or a disservice?
The leaker(s) did America a favor by letting us know our government was spying on us.
The leakers have endangered America by letting the terrorists know we are listening to their domestic phone calls
They should not have leaked the information but they did us a service
They should not have leaked the information but they did us no harm
I do not have enough information to make a decision
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