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Someday. Maybe. If I'm Really Good
I've made some punishment arguments to juries that I'm very proud of-arguments that gave me shivers, that got my clients exactly what they wanted. But I don't believe I've ever read-much less made-a punishment argument anywhere near as powerful as this argument to a judge in an intoxicated-manslaughter a second-degree murder case by California criminal-defense lawyer Jacqueline Goodman (via Simple Justice):
Everyone is pretending. Pretending that Andrew isn't a good person, not an ordinary young man. Pretending that three sets of parents who held their babies in their arms and dreamed about their futures are any different from parents who, at that same time 23 years ago, on those very same days, held their first baby boy, Andrew, bounced him on their knee, and dreamed of his future, full of love and promise.Pretending those innocent parents are not victims themselves. Pretending their pain is less relevant here.Pretending that the victims were not themselves human– beautiful and yes, flawed. Pretending that Courtney Stewart's mistakes did not exist, and that Andrew Gallo's mistakes were intent to kill. We're pretending that Andrew is on par with those depraved killers who look into the eyes of their victims and determine wilfully to take their lives. We're pretending that 51 years to life will have any impact on whether a different young man or woman drinks, and then foolishly gets behind the wheel, believing, as they do, in their omnipotence, their immortality. We're pretending that here, today, that we are somehow not taking another life with cold intention, in response to the loss of lives in a tragic accident.Well I will not pretend.Andrew Gallo is a good and gentle soul who never set out to harm another person, and who does not deserve to lose his life.He comes from a good family– a military family, his own brother a marine. A family who, in deference to the pain of the parents of the victims, and without thought of their own sorrow, every day gave up the front seats in their son's own trial to the parents of the decedents here. They quietly sat in the back, entered and exited last, even as their son's taking was on display in slow motion.And it is absurd to think that we can summarize in a few sentences the infinite value of any of these lives or the depths of sorrow at these losses. But the only way we might spare a life or several lives from a similar fate is to allow Andrew the opportunity to share the lessons he's learned at such great a cost.That would be a far greater and more fitting legacy to Henry Pearson, Courtney Stewart, Nick Adenhart, and Jonathan Wilhite. That in their names was dealt mercy and temperance and understanding instead of vengeance and blame. That in their names, others were spared their own lives. This would be the most fitting tribute to these extraordinary people. They would stand for forgiveness over blame.My own father is dying. He saw me in court one time, and that was here, in closing arguments. My father is a recovering alcoholic. He had about 30 years of life-affirming sobriety. But it took him about 40 years to reach it. Fate denied Andrew as much of a chance.Today Andrew and I know that we come into this battle to lose. The victory, sometimes, is in showing up. The victory is speaking truth to power. It is in speaking love to hate.At this moment, my father is dying. Because I am in this hearing today, I may not be by his side when he passes out of this life and into the next. But know this: That I am profoundly privileged to stand next to Andrew Gallo. And in my father's name, I proudly stand on the side of honesty. Of hope and redemption over blame.
Christmas Wrapup
"I can't go through because I have the equivalent of a pacemaker in me," she said.Hirschkind said because of the device in her body, she was led to a female TSA employee and three Austin police officers. She says she was told she was going to be patted down."I turned to the police officer and said, ‘I have given no due cause to give up my constitutional rights. You can wand me,'" and they said, ‘No, you have to do this,'" she said.Hirschkind agreed to the pat down, but on one condition."I told them, ‘No, I'm not going to have my breasts felt,' and she said, ‘Yes, you are,'" said Hirschkind.When Hirschkind refused, she says that "the police actually pushed me to the floor, (and) handcuffed me. I was crying by then. They drug me 25 yards across the floor in front of the whole security."
(Austin, Texas ABC station KVUE.com. Yes, in Texas the past tense of "to drag" is "drug.")
Defense's First Brief in Opposition to Mandamus
I've added to my Scribd collection of documents from the John Green case the defense's initial brief in opposition to mandamus, filed before the Texas Court of Criminal Appeals' first order denying mandamus.
Briefs in Texas v. Green Mandamus
Here are three briefs filed today in State ex rel Lykos v. Fine, the mandamus proceeding in the Texas Court of Criminal Appeals arising out of the defense's efforts to show that there is an unreasonable risk that a factually innocent person will be executed, in violation of the Eighth Amendment. First is the defense's brief. An amicus brief oppposing mandamus by more than 50 current and former government employees, crime victims, and exonerees follows (here's the AP story), and then an amicus brief favoring mandamus by the Texas Attorney General.
A collection of all 19 documents from the Green case that I've uploaded to Scribd is here.
Mandamus in Texas and the Green Case
[M]andamus relief is available only when the relator can establish two things: first, that no other adequate remedy at law is available; and second, that the act he seeks to compel is ministerial. An act is ministerial "when the law clearly spells out the duty to be performed... with such certainty that nothing is left to the exercise of discretion or judgment."
That's the Texas Court of Criminal Appeals, in State ex rel Healey v. McMeans.
In State ex rel Lykos v. Fine the Tissue Court of Criminal Appeals issued a stay so that it could reconsider, in light of the admission of evidence that the State argued was irrelevant, whether to order Judge Fine to stop having a hearing on the unconstitutionality of Texas's death-penalty procedure.
Here are the cases in which the Texas Court of Criminal Appeals has mandamused a trial court judge at the State's request (followed by the judge's action that the Court of Criminal Appeals barred):
State ex rel. Guerra v. Robles, Not Reported in S.W.3d, 2004 WL 3093489, Tex. Crim. App., December 15, 2004 (NO. AP-75,059) (removal of DA from office);
Leaked Memorandum
From: John Pistole, TSA
To: Robert Mueller, FBI
Bob,
Kudos to you for that Oregon thing. You are getting really good at fabricating terrorist plots to bust would-be bombers. I'll tell you, FBI is looking good in the War-on-Terror field.
Actually, that's why I'm writing to you-I have to ask you to do me a big favor.
You know that after I left the Bureau (which job I loved, by the way-hint, hint) they stuck me in this TSA job. Well, it's really starting to get me down. I mean, everything we do makes Americans safer by making it less likely that their airplane seatmates will be wearing bombs in their undies, and they keep complaining: "John, you've never caught a terrorist." "John, the scanners don't work." "John, we don't want screeners groping us or our children." Waaaa, mine hurts too. Listen up, people: if you want flying across the country to be safer than driving to the convenience store, you're going to have to give up some of your freedom and dignity. And the fact that we've never caught a terrorist just means that YOU NEED TO GIVE UP MORE OF YOUR FREEDOM SO THAT WE CAN CATCH SOME.
Write Better Now
They didn't tell us this in law school, but the University of Chicago Law School has a Manual of Legal Citation that is, in many ways, much simpler and therefore more useful to the practitioner than The Bluebook. It's also free.
Bryan Garner, in The Elements of Legal Style
Download the "Maroonbook" here. It will go great with your new copy of Typography for Lawyers.
DOJ on Immigration Consequences
In the wake of Padilla v. Kentucky, the DOJ's Office of Immigration Litigation has prepared a monograph on immigration consequences of criminal convictions. Download it here.
Fun With Stats, and Sex-Offender Registration All Around
A Google Mobile search for
turns up my post on Texas's non-sex sex-offender-registration offenses as the second result. This may make perfect sense to you, buy I am, quite frankly, baffled. I mean,
On the topic of non-sex sex-offender-registration offenses, Texas has a stupid rule, but Wisconsin is the state that I know of that has been stupid enough to actually make someone register as a sex offender for committing an unambiguously non-sexual crime. Between this and Kenneth Kratz, Wisconsin seems intent on proving that a state doesn't have to be south of the Mason-Dixon line to be a repressive inbred third-world backwater.
The Science of SWRVs
I've mentioned Scared White Republican Voters a few times here. The idea is that Republican politicians play on fear to get people to comply with their plans in a way that politicians of other parties do not.
I didn't mean to say that all, or even most, Republicans are scared, but it turns out that there is science correlating traditional "conservative" Republican rightist attitudes with fearfulness:
Those individuals with "measurably lower physical sensitivities to sudden noises and threatening visual images were more likely to support foreign aid, liberal immigration policies, pacifism and gun control, whereas individuals displaying measurably higher physiological reactions to those same stimuli were more likely to favor defense spending, capital punishment, patriotism and the Iraq War," the authors wrote. (ScienceDaily.com.)
Lest the Democrats / "liberals" / progressives among you start feeling smug and superior, consider what politicians on the left use to secure your compliance:
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