Tuesday, July 17, 2007

Look Out!!! : A Rant!!

Whenever an idea to "reform" criminal law comes down, there is an abject hue and cry from the defense bar, not because we don't want to improve the system, but because we see every "reform" as another way for the crazy people on the other side of the reform to screw with the wheels of justice. Not to mention what they want to do to our clients.

The newest salvo comes from Ohio, the land that gave us US v. Larry Flynt.

Take Megan's law. A registry where police can better keep track of people who are accused of sex crimes after release from prison. Defense counsel says no. It will be used to give the information to others. They will come and stalk people who have paid their price to society. It will include too many crimes that have nothing to do with sex but have to do with genitalia like prostitution or public lewdness or urinating in public. It will lump people who commit crimes against youngsters with people who have a fight with their girlfriend or who have sex with a minor when they are only a year or two older than the minor.

We are told we worry to much about the defendant's and put innocent victims at risk, then within a few years all our chickens come home to roost.

Now from Ohio, we have the newest in Fall colors, SEX OFFENDER GREEN. That's right, if you've been convicted of any level 3 Megan Law Crime, or you are related to anyone who has been convicted of such crime, or you borrow that car, everyone in the neighborhood, infact everyone on the highway will know it.

Well what's the matter with that? Well for starters less than 1% of all level three sex offenses take place between strangers. In fact most of the time it takes place within families. So now you put family members at risk. At risk for what you ask? How about crazy people who are peeved that the car owner didn't get life or death for their sentence and decide to take it into their own hands. How about the kid who goes into the movie in his dad's car. Can't wait to see the look on his date's father's face!! Or the guy who finally finds a job, works and then comes out to find his car demolished by vigilantes. You know, after a while, enough is really enough. Especially when it is clear that IT DOESN'T HELP!!

It is a vicious cycle. Politicians can't help but pander. It is in their makeup. They can't help but take advantage of a constituency that has a little voice, to make a bigger constituency happy. They are too weak of mind, or morals, to say "we will not abuse one group for another." And so we get:

Genarlow Wilson, locked up for 10 years for having oral sex with a girl 2 years younger than he.

Dopey politicians who want to declare prostitution which is a crime between consenting adults a sex crime.

Even dumber yet there is a politician who wants to make urinating in public and other public lewdness a sex crime.

Then we have even more lilied liver idiots who are gathering the homeless sex abuser
and herding them into trailers and moving them from place to place so nobody has too many of them in the neighborhood. Here's an idea, if you don't like the neighborhood, take a second job, make more money and MOVE. Don't tell a person who has made enough money to live somewhere that he can't live where he wants.

I would love to find a person who has been banished by some stupid anti sex offender zoning statute to sue the rear off some idiot county for a violation of his fair housing right.

We have kids going to jail for showing Playboy magazine to a younger kid. I'm not talking showing a centerfold to a 5 year old by a 19 year old, I am talking about a 16 year old showing a centerfold to a 14 year old. Hell the same kid is watching "R" rated movies on cable and on the internet. He is seeing as much as he wants to see. But if we have the chance to make it a sex crime... well then who cares.

How is it, that when 17 year old Genarlow Wilson has consensual oral sex with a 15 year old he is some crazed sex offender and treated like an adult, but when 24 year old Monica Lewinsky has oral sex with Bill Clinton she is some kind of Ing'enue.

Maybe it is my mood, but what we as a general public do not know about sex offenders could fill a book. So we listen to the potbangers and let them work us up into a mass hysteria until the people who do know about these things get tired of shouting over the masses. We mess it up really bad and then we wonder how we were lead astray. We ask no questions. We accept the garbage we are fed and then wonder why we are screwed up.

Oprah Winfrey says sex offenders can't be reformed! Great, who the hell gave Oprah a PhD. in anything besides eating? She was abused, so she is an expert? I had appendicitis and had an appendectomy, does that make me a surgeon?
We ignore what we don't want to hear. Instead of asking our own questions we just accept the pap that we are fed and then wait for more.

The Internet has more information on it than any library I have ever seen. We can get our answers right hear with the help of Google or Yahoo. But we won't. We will use it to listen to music, write a report, and watch a video, and then think we are all technological. Until we add the ability to reason critically, and to use the Internet for something other than porn and politics, all we have is a more expensive TV.

Sunday, July 15, 2007

Don't Give Up, Don't EVER Give Up.

The words spoken in the title, were spoken to me, and to millions of others, by the great, late Jimmy Valvano a basketball coach, a sportscaster, a cancer victim, a son, brother,father,and husband. Jim's fight with cancer, is the reason there is a Jimmy V Foundation for Cancer Research.

There is little a mere mortal such as I can give to the words given to Valvano from the Lord above. I am linking to both the words and the video.

Tonight the ESPY's are on and that marks in a sense the 15th anniversary of these words. I commend this paragraph to you all. These words are the words that Jimmy left us with. They are the words of his parents and my own. They are the words my wife, my sons and I as well as many who face the worst that life has to offer everyday live by to get to another day:

"I just got one last thing, I urge all of you, all of you, to enjoy your life, the precious moments you have. To spend each day with some laughter and some thought, to get you're emotions going. To be enthusiastic every day and [as] Ralph Waldo Emerson said, "Nothing great could be accomplished without enthusiasm" -- to keep your dreams alive in spite of problems whatever you have. The ability to be able to work hard for your dreams to come true, to become a reality."

Enjoy, Be Inspired and Never Ever Give Up!

Wednesday, July 11, 2007

Crazy Texas School Decision; Pass the Second Chance Act; Reduce Sex Abuse...Stop watching the Abusers; A Favorite Blogger Returns...With Some Sad News

Oy So much to blog, So little time...

I. Child Writes "I Love You" on a Wall in School, Gets Kicked Out at Taxpayers Expense! What's Wrong with this Picture???
Well this story
caught my eye. Twelve year old girl falls for Fifteen year old boy, professes her love with a blue magic marker, gets a year in Alternative school.
Result? She still loves boy, another 12 year old will do the same thing because 12 year olds don't really understand deterrence, and TAXPAYERS IN TEXAS GET SCREWED!!

She is 12. She wrote on a wall. For goodness sakes give her a scrub brush and make her work to take it and any other graffiti in the school down. Make her write on the blackboard 100 times "I will not profess my love thru graffiti." Do not send her to a school for alternative students which costs the school taxpayer more money because you cannot think of a way of disciplining a kid. The school district thinks it has no choice, because Texas has a law that governs this type of thing...That Lawyer Dude says, "NEVER LET SCHOOLS BE RUN BY STATE OR FEDERAL GOVERNMENTS UNLESS THEY INTEND TO PAY FOR EVERYTHING."
The state Legislator says the district is misconstruing the bill. Maybe. It seems like it is the adults who need a time-out here.

II. Let's Advise Congress to Pass the Second Chance Act.

This one seems like a no-brainer, but of course when dealing with the US Congress, that is usually a huge problem.

"What happens when you take a drug addicted kid at age 20 and stick him in jail for oh say 12 years?"
You get a 32 year-old drug addict who can't find a job. He goes back to drugs, he can't pay for them so he commits a crime to get the money to pay for the drugs and he goes back to jail...and back to costing THE TAXPAYERS MONEY. (If you are astute, you may be discerning a commonality of thought in the last story and this one.)
Enter the Second Chance Act. It provides funds for drug rehabilitation, job training, education, housing and some of the other things that help a person to reenter society. Seems like a good idea; We just paid to teach him a lesson, it would be a good thing if we now gave him a chance to succeed. After all isn't that what we did for Germany and Japan??

Well hold on. This act which makes imminent good sense, because it will increase the tax rolls while decreasing recidivism which decreases insurance rates, police costs and further jail and prison costs is accused in some quarters of being like a "handout" for people convicted of crime. I can here people saying it now, "MY SON THE VICTIM DIDN'T GET A CHANCE FOR A FREE EDUCATION." Let's continue to mix apples and oranges and call it a criminal justice system.

Let us stop the so-called victim's rights people right now. What happens to an individual victim, is addressed by the civil law. What happens to society is what is the concern of the Penal law. We have a bad habit of mixing the streams. "Don't cross the streams!!" The Penal Law and the Corrections Law needs to return people to our society that can contribute to it, not take away more. We started this "victims advocacy" crap in the 1980's and we have now become the largest prison state in the world. It is time to put "society" as a whole back on the prosecutions mind. Of course victims want vengeance. They've been victimized. Ask them if they want the same level of revenge if they have to pay the cost for the revenge!

Another more valid attack on the bill is that, constitutionally there seems to be no role for the federal government in prisoner re-entry. This is the issue that killed the bill the last time it came around for a vote. Sen Thomas Coburn (R-KS) put a hold on the bill which killed it despite the fact that he was the only person in the US Senate who wanted the hold.

In response, I think the funds should be given to only Federal prison programs and applied by the states to help the re-entry of Federal prisoners, except for the Pell grant restoration provisions of the bill which should be open to everyone (though I can make a really good case that giving anyone Pell grants violates the Constitution.)The Second Chance Act will teach redicient states how to help their re-entry issues.

Ok so if you can agree that after someone pays their debt to society, it would be a good idea if society offered them a chance to improve their success rate outside of Hells walls, then go to this website for FAMM and write to your people in Washington DC.

III. Want to Reduce SEX CRIME Recidivism? Stop Watching the Abusers So Closely.

It is a counter intuitive argument and maybe even politically risky, but according to policy reports, you should not supervise a low risk sexual offender the way you would a high risk one. If you do, you increase the chance he will act out. I've been saying this stuff for years, it is about time someone recognized the different types of sex offenders. We cannot keep trying to solve big problems with cookie cutter solutions. Sex offender rehabilitation is not one size fits all. You can read the post at Grits for Breakfast.

IV. Return of "Will Work for Favorable Dicta" is Welcomed but Sad.

There was a young law student blogger whose work I really enjoyed. After graduating from law school, she took a non traditional legal job in the great NW and was loving it. She thought it best to rest from Blogging lest she jeopardize her new job. We haven't heard from her in a while. She goes by the handle Energy Spatula.

She returned to blogging this week and She has returned with the sad news that she is sick. She has an auto immune disease, Multiple Sclerosis MS. She approaches the issue with her usual good humor and bravery. I truly believe that E-Spat as we know her will be a tremendous voice for people with auto immune disease. You cannot help but love her. Please add WWFD to your RSS feed, and keep lil E-Spat in your thoughts and prayers. I know I will.

Good Night.

Tuesday, July 10, 2007

STIFLE HIM ARLENE: Senator Spector Introduces a Bill to Ban the Use of Presidential Signing Statements in Court Decisions

Does any elected official in Washington DC actually read the US Constitution???

Senator Arlene Spector (R-Pa.) has introduced a bill to ban Courts from using Presidential signing statements to reflect part of the history of any law.
You can access a copy of the proposal here. It's only 2 pages long and worth the read.

Far be it from me to not understand where the good Senator is coming from. I hate Bush's stupid self serving signing statements too. Screwing with the delicate balance of Powers set up by the US Constitution is not the way to fix it however.
The bill is of course DOA when it hits the oval office. Moreover, it should be.
This is an example of over-kill and it is Constitutionally unexceptable.

First it says that the Supreme Court (hereinafter SCOTUS) actually all courts, are banned from referencing Presidential signing statements or relying on them in determining cases. The Constitution does not require that and it is not a good precedent to allow one branch of government to officially silence another branch of government.

Secondly the bill would give Congress the right to expedite matters in the courts and to file amicus briefs through the House or Senate Counsel offices. These briefs must be accepted by the court. Nope, the cases in controversy in the courts belong to the litigants. Amicus approval should in the first instance be up to them. If they unreasonably withhold that approval, or the court thinks it would help reach a better determination if other parties weigh in, then it may ask for or accept these briefs.

Finally, Congress now also wants the right to file a clarifing statement to any case where a court wants to interpret the law. It will come up with a statement and if it passes by a majority vote it will be used to clarify what Congress meant when it passed the law. Now that should really leave laws in limbo.

The purpose of law and precedent is so people can rely on the law in making everyday decisions. Can you imagine what would happen if everytime Congress changed hands, they could "clarify" what the Congress that passed a law meant when it passed the law. Besides isn't that what the court does. Doesn't the fact that there are no judicial terms mean in part that courts is the branch with longevity? Isn't that one of the purposes of life terms?

When a court interprets a law, it can use legislative history to help interpret what Congress meant when the law passed, and it should likewise have the benefit of the President's thoughts on the matter, at the time the law was enacted. The court does not have permission to check its brain at the door however. It must use these tools as it sees fit. Litigants can site to them and they too should be able to cite the statements of Congressmen and Senators as well as Presidents. What are we saying to our courts when we tell them they can cite foreign law and cases but not the words of our own popularly elected President???

Some scholars have been bothered that when President Bush signs a Law, his signing statements are often orders to his executive branch as to how he wants the law enforced. His statements often cherry pick the things he likes about the bill while objecting and trying to accept himself from the parts he doesn't like. I agree with these scholars that the President is wrong to do that. He should enforce all the laws. The remedy however should not be to ban his ideas about a piece of legislation. It is instead to Impeach him if they think he is failing to do his job.

That is not an easy thing to do, but it is the appropriate check on Presidents that refuse to enforce the law. Trying to take back power through unconstitutional means is both overkill and bad make that lazy lawmaking.

Thursday, July 05, 2007

President Bush Finally Figures Out a Way to Use the Constitution Rather Than Go Around It.

I have been reading the stories about the Republican Right and the push for a pardon of I. Scooter Libby. In fact, I have no problem with Libby getting a sentence commutation or for that fact even a Presidential pardon. Just as I had no problem with Clinton pardoning his brother or Mark Rich. It is in the prerogative of the executive. In fact it is one of the few things Bush has done where he hasn't overstepped his bounds.

People need to get a grip. I have heard how he is ignoring the advice of his Justice Dept. Hell, ever since Ashcroft and Gonzales came to town no body else pays it any mind, why should Bush. Besides, what makes anybody think that this Justice Dept. couldn't find a way to agree with the decision if the President told them too.

I think a Presidential pardon, any Presidential pardon, is a good thing. Now you may say that is because I am a criminal defense attorney. You would be wrong however. It is because that being a Constitutionalist, I believe that the Presidential pardon is a check on the judiciary that a President should use anytime he feels it represents his vision of law enforcement. One has to remember that the President is the spokesman for the majority of the people who vote in this land. He is their voice. The court is a check on the majority making sure the majority does not over run a minority and hurt it.

Now it is an important difference. The Constitution allows the Executive to pardon people, but not to enslave them. It cannot use its power to ruin but to free. Even if he were to allow murders or terrorists to be pardoned, he would be doing so as the voice of the majority of the voters, those people who voted for him. As a practical matter that will not happen, but that it could means that the public has a way to overrule the court. It keeps America from becoming a slave to the courts.

Assume for a moment a wave of anti-Christians take over the power of the executive and legislative branches. Assume further that they then persecute the leaders of Christianity. Christians can revolt or they can go to the polls and vote them out in an orderly fashion. Thereafter, a new President can go back and right the wrongs as he sees fit, and as his supporters see fit. Pardons are a pretty good check, the problem with Libby is that he represents things that others find aborhent.

Imagine the outbreak of support by the Neo-Con right and Jewish Americans if Jonathan Pollard were to be pardoned. Imagine how those same people would have felt if Clinton had pardoned Susan McDougal.

Pardons are the one thing a President does not need approval to do. He has the Constitutional right to do as he pleases and we as a people give him that right in the hopes he wields it the way a majority of us would have. SO pardon and commute away Mr. President. Maybe some of your Judicial appointees will see this as what you mean as compassionate conservatism. Maybe they will understand that the Guidelines are not always presumptively reasonable, just like you did for your pal Scooter, and they will start finding more Booker/FanFan reasons to let others have a chance. Who knows, maybe we will start using jail less as a deterrent and less as a punishment and more just to keep society safe, while sending the rest to programs and sentences that will rehabilitate and keep people working and supporting their families instead of going to prison where they will surely negatively affect their children's ability to stop the cycle of crime.

Wednesday, July 04, 2007

Pardon Me???

If I started to link to all the bloggers/blawggers and others who are writing about the sentence commutation of I. "Scooter" Libby, I would be up all night. I will therefore give one link, to my friend Professor Ellen Podgor whose analysis is spot on for what we as lawyers or professors have to now consider for our clients who are in a similar situation as Libby. Another link is saved for my friend Prof. Doug Berman who is using the issue to teach others how to give their clients a better chance at a fair sentence by using the case in their sentencing memorandums.

Sunday, July 01, 2007

What is the State of The First Amendment in Schools?

As most of you know by now, the Supreme Court ruled in favor of the school district in Fredrick v. Morse (or in the Supreme Court case Morse v. Fredricks A/K/A the "BONG HITS FOR JESUS" Case)the SCOTUS ruled that students free speech rights could be curtailed when their message inspires drug use (See dissent by Stevens.)Now here is the interesting thing: The majority opinion does not specifically limit the language to illegal drug use. Hence a student rally to raise funds for NORML could conceivable run afoul of the majority opinion... STOP RIGHT THERE!!
Justice Alito, recognizing the right students have to Political Speech, along with Justice Kennedy filed a concurrence that says that the speech has to advocate illegal drug use. Presumably if the issue were so framed then Alito would have been in the majority as well with the 3.5 dissenting votes (see Justice Bryers decision) his and Justice Anthony Kennedy.

A few thoughts. First, I wrote that I would have allowed the speech because I did not feel it was a school matter. If the issue had been framed that it was a school matter, then I would have ruled the speech unprotected because "BONG HITS FOR JESUS" is a nonsensical phrase and conveys no thought (which was admitted by Fredrick's who was just looking to get on TV and to piss off principal Morse.)In a large sense then, while I wouldn't get on the 9th circuit, maybe I am qualified to be on SCOTUS!!

Secondly does it bother anybody that Justice Thomas cannot find any precedent for TINKER v. DES MOINES SCHOOL DIST., 393 U.S. 503 (1969) in the constitution. Damn. The First Amendment says "Congress shall make NO LAW...abridging the Freedom of Speech..." and the Fourteenth Amendment applies it to the states. I don't like reading things into the Constitution but I don't like reading them out or ignoring them either. I do not buy that just because 19th century American schools didn't think to enforce speech rights doesn't mean that someone construing the Constitution didn't think the rights existed. The issue never faced the SCOTUS.

I also find that while historically one could point to the in loco parentis doctrine, that has been withered away by exactly the process Thomas advocates, the votes of parents. Today's parents have shot down a lot of rules including dress and even speech rules through both litigation and election of like minded school boards. Critical thinking in education (which requires that students think and object and support points etc) are all part of today's social studies curriculum . The hodgepodge of thinking on 1st Amendment issues that Thomas J. objects to, is far more possible under his standard than that of the Tinker standard. To the extent that Justice Thomas sees a need to amend the Constitution to include School speech in the phrase Congress shall make no law... I do not think that it either is anti originalist nor inappropriate to state that NO meant NO even in the 19th century, even though SCOTUS was not asked.

Finally, as if to put an exclamation point to Justice Alito's concurrence, SCOTUS on Friday issued a rebuke to a school that banned a shirt worn by a student that had pictures of Cocaine, and a martini glass and referred to President Bush as a coke snorting, weed smoking, alcoholic. (See this story and this post) The Second Circuit had ruled against the Vermont School district and the SCOTUS refused to review the decision. The case is Guiles v. Marineau, 461 F.3d 320 (2d Cir. 2006), cert. denied sub nom. Marineau v. Guiles, 75 USLW 3313 (U.S. June 29, 2007) (No. 06-757).

So to sum up my opinion of the law on School speech, Tinker is still good law. Just make sure your message is political speech and can easily be understood to be political, and keep the nonsense to a minimum.

Where Have You Been Tony Boy???

Well I doubt very much that this blog still has any readers, but for those who may happen onto it, I thought I might explain, where I have been.

I have been struggling for a while to find my voice on the Blogosphere. I started this blog, in part to attract attention to my ideas about the law. I also wanted to attract clients to my law firm. Over the years, the blog changed and it became a voice for my personal views about the status of the law, and how I feel about things. To that end, I found it very fulfilling. To the end that it did not analyze cases and talk about trial practice and the like, it left much to be desired.

I needed to have someplace to do both things. Hence I started our sister blog, Long Island (Criminal)Trial Law. Well that was good, except that writing two blogs while practicing law and dealing with a home life that includes a chronically ill family member, and marketing a practice, was to say the least driving me insane.

I have played around with different options, and I think that I have decided, at least for now, to return to blogging here. I will leave everything I have on That Lawyer Dude and for now "mothball" LI(C)TL and The Positive Review. That means that this formerly polemic blog, is going to be a lot more, and therefore also a lot less.

I am going to try to make more use of the Labels option, and I will be changing things as I go along, who knows maybe we will also pick up a reader or two. Either way, this blog, counter to what all my marketing Guru's have to say, is going to be for me. If you want to stop by, read it, comment, anything else, go ahead. If I am the only on who stops by, well then that is ok too. I need this outlet far more than I was aware I did. For those who are looking for the legal advice I used to dispense at my other blog, you can look here, or you can look at Lawguru.com I am posting there now too. In the meantime, I have to figure out, where to start, I mean there's been Scooter, and Paris, and more Bong Hits and Sentencing reform and ... well you get my drift. So without further adieu: