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Recent Blog Posts
Interpret or Make Law?
"We want judges who interpret law, not make law." is ignorant right-wing hogwash.
We all agree that law needs interpretation. It rarely springs fully-formed from the legislature, so that its meaning is clear to all who read it. Even the U.S. Constitution needs interpretation - it doesn't explicitly address every conceivable situation.
So we do indeed want judges who interpret the law. But interpreting law is making law. The law is what the legislature says it is, as interpreted by the judiciary and as enforced by the executive. Every judicial decision - even those with which the right wing disagrees - is an interpretation of the law.
If the legislature thinks the judiciary has misinterpreted a statute, it can (and is expected by the courts to) rewrite the statute. If the People think the judiciary has misinterpreted the Constitution (for example, by finding a right that the People don't think that document guarantees or should guarantee), the People can amend the Constitution.
Another Approach to Death-Qualified Jurors
In jury selection for my aggravated assault trial last week, I objected to the State's use of a challenge for cause to exclude a potential juror whose religion forbade him judging other people. The objection was under Article I, Section 4 of the Texas Constitution, which provides in relevant part, "No religious test shall ever be required as a qualification to any office, or public trust, in this State." (The U.S. Constitutionin Article VI Section 3, also forbids religious tests for public offices.) My reasoning, as I've discussed here before, was that jury duty is an office or public trust, and that it is a religious test to bar from that office a person who, for religious reasons alone, could not find a defendant guilty.
The judge (a retired appellate judge) asked me if that wouldn't mean that jurors who couldn't consider imposing the death penalty because of their religion would be able to serve as jurors. I had to concede that this was a good question, and that in my opinion it would.
Probation vs. Prison
Probation / Prison
Productive member of society / Drain on society
Restitution / No restitution
Supervision of court / School for crime
2y probation + 2y prison = 4y in system / 2y prison = 2y
Conditions of probation / Robbers, rapists, murderers
For people who can live in society / For people who cannot live in society
Alcohol evaluation and treatment / Warehouse for human beings
One-shot deal / Likely to reoffend
Second chance / Last resort
Can always go to –> / <– Can never go to
Rehabilitation / Retribution
Redemption / Damnation
Mercy / Cruelty
Love / Fear
Troy Davis
That the following is a question that a court can even ask, shows that the system is seriously broken:
Whether Davis can still be executed if he can establish innocence under the second standard [clear and convincing evidence that no reasonable fact finder would have found him guilty] but cannot satisfy his burden under the first, due-diligence question.
(Via A Public Defender.)
I look forward to the government's explanation of why it should be allowed to execute someone who is clearly innocent because his lawyers should have found the evidence of his innocence in the first place.
In Trial
I'd much rather be in trial than waiting to go to trial - a good day in trial is better than just about anything else you'd care to name. This is my sixth jury trial in twelve months. It's an aggravated assault charge - CW got glass in his eye, needs money, blames D. In the 179th District Court, the Honorable Lee Duggan presiding. If you're in the neighborhood, drop in and say hello. We should be arguing it early Thursday afternoon.
Blogging Politics
From the mailbag:
Please don't take my unique questioning ideas personally, as I don't know and I am just asking you what you think. I was wondering whether being openly political on your professional legal blog may sometimes be unwise. I have written or emailed other lawyers the same question. I also feel passionately about politics and love politics and I guess I am somewhat of a political junky. Yet, I think irregardless of which party wins or which party I support, that maybe it would be more correct to post political ideas on a different blog than my professional legal practice blog. Some people say blogs are like diaries and people put down emotional things and say things like I feel "cloudy" and stuff like that. I have been entertained and educated by blogs and if I disagree with the blog, well I don't have to read it, although I respect other people's ideas so I usually read it anyway. Never-the-less, would you feel uncomfortable in representing someone from the opposite political party from you. Also, can someone from the opposite political position have worthy valuable ideas and deserve some degree of respect even though you disagree with them. If your mother or father or someone you care about were members of the opposite political party would you treat them with respect? Are law blogs required to be political? Are there some things that should be above or beyond politics? How would it feel to be sentenced by a Judge who was a member of the opposite political party or prosecuted by a prosecutor from the other side or defended by a defender from the other side or arrested by a law officer from the opposite political party? I think there have been some historical incidents involving political type things and they usually go against the politicizer. Like Socrates, all I know is I don't really know, but asking the question makes you think.
The Nature of the Job
The job is antidemocratic, to begin with. Our Constitutional mission is to confront and resist authority, which, in America (where we like to elect our authority figures) means flouting the more-or-less democratically expressed will of the majority. Successfully defending people usually means telling those whom the majority has chosen to enforce the laws made by its representatives that either they or the laws are wrong. In other words, the mob is wrong.
Which explains why lots of people don't much care for us: they are under the impression that they live in a democracy, where what the majority says is always right. This misconception leads them to (among other things) resent judicial review, and feel threatened by those who resist their will. To explain how it is that an intelligent person could stand up in court day after day and tell the mob that it is wrong, they tell themselves (and, as anonymous blog commenters, anyone else who will listen) that criminal-defense lawyers are sleazy, dishonest, unethical.
Notes From DEA Law of Deadly Force Class
A public-spirited reader sent me his notes from the portion of DEA training dealing with the use of deadly force. He tells me that the students would be given certain fact patterns and told to stand up in class and respond with the exact phrases described in the notes to justify a shooting.
LAW OF DEADLY FORCEXXXXXXXXX – INSTRUCTORPRE-CLASS ASSIGNMENT NOTES HOSTILE MOVES WITH GUNS1. Points what appears to be a gun in your direction2. Shoots at you3. Reaches for waist4. Raises what appears to be a gun in your direction5. Turns towards you with what appears to be a gun in his hand6. Comes at you with what appears to be a gun7. Reaches for a gun8. Runs for what appears to be a gun nearby9. Reaches for a pocket large enough to conceal a gun10. Grabs for your gun11. Reaches into a coat12. Reaches for his ankle13. Reaches under a seat14. Reaches into an area not yet cleared, that could conceal a gun **To shoot at someone to stop an attack, the Officer MUST wait until the suspect makes a "Hostile Move" (you should see or hear some objective sign) that gives you P/C to believe an attack is about to occur. **If you approach a suspect on foot, identify yourself as DEA with your gun visible in hand. Give a command; if suspect violates the command, courts have upheld that it is justified to shoot to stop the attack. The 14 items listed above give you (1) P/C he intends to attack (2) P/C he is armed with a gun (3) P/C that you are in "immediate danger" HOSTILE MOVES BY VEHCILE1. Accelerates at you, as if to hit you2. Hits you hard3. Drags you alongside4. Knocks you onto the hood and keeps going **Must approach vehicle on foot and ID yourself with your gun visible and give a command. HOSTILE MOVES WITHIN VEHICLE1. Bends down towards the floor a. If you approach on foot with gun visible, ID yourself, and give a command, if the suspect ignores you and bends towards the floor, you have the right to shoot. You need NOT wait to see what he may be reaching for.2. Dives low into the vehicle · If you approach on foot with gun visible, ID yourself, and tell the suspect to step out of the vehicle, he complies, but then in violation of your commands, turns back towards the open door and reaches or dives down towards the floor of the vehicle, you have the right to begin shooting IMMEDIATELY in self defense (due to the perception and reaction times).3. Turns toward you with a gun in hand · If you have probable cause to believe an occupant of a vehicle has a gun in hand AND, in violation of your commands, he begins to turn towards you, you may shoot. You need not wait to confirm that he has a gun, nor do you need to wait until he is fully facing you. PROHIBITIONS AGAINST SHOOTING – DOJ / DEA DEADLY FORCE POLICY · Deadly force may NOT be used SOLELY to prevent the escape of a fleeing suspect · Firearms may NOT be fired SOLELY to disable a moving vehicle · Warning shots are NOT permitted outside of the prison context 5 CONDITIONS THAT JUSTIFY SHOOTING TO STOP AN ATTACK · P/C that the subject intends to attack · P/C that the subject has the power to cause death or serious personal injury · P/C that there is imminent danger · You first give verbal warnings if safe and feasible to do so · You balance the risks of hitting others OTHER IMPORTANT THINGS TO REMEMBER 1. Perception time – Time it takes from what we see to the time our brains begin to process what we are seeing to our brain so that we are aware of it. The time we are effectively "blind" to what we are seeing (Use.25 sec. average)2. Reaction time – Once we recognize we are about to be shot, our muscles do NOT begin to move instantly. They remain frozen for a fraction of a second (Use.25 sec. average)3. Firing times – time it takes to actually draw your gun, bring it up to the target, bring your finger to the trigger and pull the trigger. Could be 1-2 seconds in addition to perception and reaction times. Immediate vs. Imminent Dangers · An immediate danger requires an immediate response – i.e. Being shot at · An imminent danger slightly broader than immediate – i.e. Shooter stops shooting at you and runs. This is an imminent danger.**All immediate dangers fall under imminent dangers, but not always vice versa** Suspect will not show his hands · With gun visible, ID yourself. Order suspect to show his hands. If he does not, you may assume he has a gun. This does not give you justification to shoot him, but it does give you P/C to believe he is armed. 21 Foot Rule · When an attacker with a weapon (i.e. Knife) is 21′ away from you, you may argue suspect poses an imminent danger assuming they may attack you. It may also apply at greater distances, but you must articulate the suspect poses a danger to you at the greater distances.
A Flyspeck Here, a Flyspeck Here, and Pretty Soon You're Up to 12 Million Dollars.
Why we don't practice civil law (Brian Tannebaum's other blog, My Law License). At least the judge keeps a sense of humor about the relentless asshattery of lawyers attorneys who are a) fighting over money; and b) billing by the minute; and consequently c) make more money the more they "flyspeck" each other. The first paragraph of the order:
Pursuant to the modified scheduling order, the parties in this case had until June 25, 2003 to file summary judgment motions. Any electronic document may be e-filed until midnight on the due date. In a scandalous affront to this court's deadlines, Microsoft did not file its summary judgment motion until 12:04:27 a.m. on June 26, 2003, with some supporting documents trickling in as late as 1:11:15 a.m. I don't know this personally because I was home sleeping, but that's what the court's computer docketing program says, so I'll accept it as true.
Not, in the Usual Sense, Criminal Law
Lloyd Kelley, The lawyer for the Ibarra brothers, who successfully sued Harris County for civil rights violations earlier this year and, in the process, brought down Harris County District Attorney Chuck Rosenthal, is now the defendant. The brothers have hired another lawyer to sue him over more than $200,000 in expenses deducted from their $1.7 million settlement, reports Rick Casey in the Houston Chronicle.
The expenses include $20,000 to community activist / police auxiliary Quanell X. According to the Ibarras, Kelley told them that the money was for organizing a demonstration march. According to X, he was a jury consultant for the trial. X says that he was paid some amount of money "to be a consultant, a jury consultant for the trial." Kelley says that he turned to X to help him frame the issue of asking a jury for $5 million for a night or two in jail, because "he's just somebody who if you want to know what certain aspects of the community are thinking, you consult with."
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