Cheating at the Derby?
I grew up in Kentucky. There is almost no greater sin than to mess around with the Derby. Of course, cheating would explain a win by a NY horse. Gonna keep an eye on this
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11 May 2003
A comment which points out that both Liberals and Conservatives are opposing the federal sentencing guidelines.
Only two groups think sentencing guidelines are good: prosecutors and people who have never had anything to do with the courts
Personally, I think that the feds should look into something like the Virginia guidelines. Make the guidelines non-mandatory but when the judge departs make him write an opinion.
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Only two groups think sentencing guidelines are good: prosecutors and people who have never had anything to do with the courts
Personally, I think that the feds should look into something like the Virginia guidelines. Make the guidelines non-mandatory but when the judge departs make him write an opinion.
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Attempted Murder by Scent
"The fragrant incident occurred on April 4 during a conversation the couple were [having] about separating after three years of marriage. Taylor told investigators that his wife became enraged when he refused to give her half of his settlement.
"Lynda came in the kitchen wearing perfume and applied some to (her daughter). Then went around the house spraying Lysol and even sprayed some in my face," David Taylor wrote in his complaint."
The question whether this is for real or just part of the typical divorce wars.
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"The fragrant incident occurred on April 4 during a conversation the couple were [having] about separating after three years of marriage. Taylor told investigators that his wife became enraged when he refused to give her half of his settlement.
"Lynda came in the kitchen wearing perfume and applied some to (her daughter). Then went around the house spraying Lysol and even sprayed some in my face," David Taylor wrote in his complaint."
The question whether this is for real or just part of the typical divorce wars.
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The right to liberty is different from that against torture - an absolute right. But every country develops its own regime on deprivation of liberty . . . its own punitive measures. All human rights law can do is guarantee that the deprivation of liberty is carried out lawfully.
While the Brits are fussing over the possible loss of their wigs, the Chinese have taken their judges out of military uniform. Their schools are starting to teach about rights and their professors are starting to write textbooks about them. Still, there is a long way to go.
"Professor Yue, an associate law professor at China University who helped to draft China’s criminal code, is open about the problems. A big challenge for the Chinese justice system is how to get human rights into it. This idea that pre-trial detention should be controlled by the judge is very challenging. We discuss it, me and my colleagues. We think it will be very difficult to take away this power from the prosecution. But the reform is very important for the criminal justice system. Other crucial changes are needed. I think we should also introduce the system you have of habeas corpus. This is also part of judicial control over deprivation of liberty.
The way forward is to keep pressing the case, she believes. Recent history shows what can be done: the Chinese legal system and profession is only 20 years old. The new criminal procedure law was passed in 1998 and now the focus is on the justice system and procedures. The big thing we reformed was the criminal procedure law and we introduced the presumption of innocence this was very important. Before, if there was a doubt, the defendant would be given life imprisonment rather than the death penalty. But now, we have the principle. If we have doubt, then they are ‘not guilty’ and we have the Scottish verdict of ‘not proven’.
The right to a fair trial is next. We have introduced compulsory defence they are appointed by the court. But it is only in the important cases, such as where the person vulnerable or faces the death penalty. This is an area, she admits, where human rights could be improved."
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While the Brits are fussing over the possible loss of their wigs, the Chinese have taken their judges out of military uniform. Their schools are starting to teach about rights and their professors are starting to write textbooks about them. Still, there is a long way to go.
"Professor Yue, an associate law professor at China University who helped to draft China’s criminal code, is open about the problems. A big challenge for the Chinese justice system is how to get human rights into it. This idea that pre-trial detention should be controlled by the judge is very challenging. We discuss it, me and my colleagues. We think it will be very difficult to take away this power from the prosecution. But the reform is very important for the criminal justice system. Other crucial changes are needed. I think we should also introduce the system you have of habeas corpus. This is also part of judicial control over deprivation of liberty.
The way forward is to keep pressing the case, she believes. Recent history shows what can be done: the Chinese legal system and profession is only 20 years old. The new criminal procedure law was passed in 1998 and now the focus is on the justice system and procedures. The big thing we reformed was the criminal procedure law and we introduced the presumption of innocence this was very important. Before, if there was a doubt, the defendant would be given life imprisonment rather than the death penalty. But now, we have the principle. If we have doubt, then they are ‘not guilty’ and we have the Scottish verdict of ‘not proven’.
The right to a fair trial is next. We have introduced compulsory defence they are appointed by the court. But it is only in the important cases, such as where the person vulnerable or faces the death penalty. This is an area, she admits, where human rights could be improved."
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First it was the elite award of Queen’s Counsel. This week it will be wigs and robes. The Lord Chancellor is taking an axe to the legal profession’s most famous hallmarks and is threatening to consign them to history.
There is some sort of fuss going on across the pond. Don't understand it all. Anybody out there in an explaining mood? I'd be happy to post any responses.
Drop an e-mail.
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Freedom to Read Protection Act
"[S]weeping [PATRIOT] legislation gives the FBI the power to seize all of the circulation, purchasing and other records of library users and bookstore customers on no stronger a claim than an FBI official’s statement that they are part of a terrorism investigation. Surely the powers the government needs to fight terrorism can be subject to more meaningful checks and balances than that, especially when the right to read without government intrusion is at stake.
Must note my approval of this. I, like most serious readers, have bought books I would rather the government not be able to use against me. Not going to list them here either.
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"[S]weeping [PATRIOT] legislation gives the FBI the power to seize all of the circulation, purchasing and other records of library users and bookstore customers on no stronger a claim than an FBI official’s statement that they are part of a terrorism investigation. Surely the powers the government needs to fight terrorism can be subject to more meaningful checks and balances than that, especially when the right to read without government intrusion is at stake.
Must note my approval of this. I, like most serious readers, have bought books I would rather the government not be able to use against me. Not going to list them here either.
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10 May 2003
Catch Me if You Can
Closing Argument
In America's Court
I've finished reading three books over the last three weeks. The first was Catch Me if You Can which is a description of how Frank W. Abagnale traveled back and forth across the United States and Europe as a kid cashing an amazing number of checks (about $2.5 million) which he faked, hopping rides as a fake airline pilot, posing as a lawyer (a prosecutor no less) and posing as a doctor. I don't usually read "true crime" types of books and I must admit that the main reason I picked this up was because of the movie. It turned out to be an amazingly good book. Abagnale is not a humble sort and he tells the story with some pride showing thru. On the other hand, he is not so full of himself that the book goes on for ever. It is an interesting read as he goes from point to point, a step or two ahead of everyone until it gets to the point that there are just too many eyes looking for him. Then it gets even more interesting as he describes the Hell of a French prison, the country-club "prison" in Switzerland and the last second switch which returned him the U.S. rather than going to another European hellhole. A short, good book which I highly recommend.
The second was Closing Argument: Defending (And Befriending) John Gotti and Other Legal Battles I Have Waged by Bruce Cutler. This story follows Cutler thru his life and legal career. A LARGE part of this book is about his representation of Gotti (which is what made his career). The book is handicapped by restrictions imposed on Cutler by attorney client privilege and the fact that he has to be careful what he says so that the federal prosecutors can't use his words to try (again) to indict him. It's not a spectacular book but it has enough substance to make it interesting for fellow travelers.
Of course, it also feeds into the paranoia that defense attorneys tend to develop. There isn't a defense attorney out there who hasn't been a courtroom with the feeling that there are two prosecutors in the courtroom: one at the Commonwealth's table and one behind the bench. And sometimes a defense attorney might even wonder if the prosecutor might be willing to sacrifice the integrity of the system in order to secure a conviction by resorting to dirty tricks such as trying to get a good defense attorney removed for spurious reasons (such as the prosecution might be stupid enough to call him as a witness). And that same defense attorney might suspect that there is an unspoken collusion between the judge and prosecutor which allows such a sham because everything possible has to be done to assure that the guilty defendant is convicted. The government went after Gotti's first lawyer and sent him to jail for 15 years. Then Cutler won two cases defending Gotti. In the third trial Cutler was removed from representing Gotti at the government's insistence. Then Cutler was tried for contempt and they tried to get a grand jury to indict him. He got six months house arrest for the contempt and must have been harder to indict than a ham sandwich because the government gave up after three years of trying.
The third was In America's Court: How a civil Lawyer Who Likes to Settle Stumbled into a Criminal Trial by Thomas Geoghegan. It's about how a civil lawyer is affected when he sits thru a jury trial and is exposed to the way a courtroom really works. He flails about and doesn't do or say anything useful. Then, at the end of the book, he just goes off into his own personal fantasyland where the U.S.'s laws are abrogated by useless international treaties which nobody follows. He just ends up on a leftist rant and even gets weirder at parts talking about "Kimberlys" and I've already quoted part of it here.
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The second was Closing Argument: Defending (And Befriending) John Gotti and Other Legal Battles I Have Waged by Bruce Cutler. This story follows Cutler thru his life and legal career. A LARGE part of this book is about his representation of Gotti (which is what made his career). The book is handicapped by restrictions imposed on Cutler by attorney client privilege and the fact that he has to be careful what he says so that the federal prosecutors can't use his words to try (again) to indict him. It's not a spectacular book but it has enough substance to make it interesting for fellow travelers.
Of course, it also feeds into the paranoia that defense attorneys tend to develop. There isn't a defense attorney out there who hasn't been a courtroom with the feeling that there are two prosecutors in the courtroom: one at the Commonwealth's table and one behind the bench. And sometimes a defense attorney might even wonder if the prosecutor might be willing to sacrifice the integrity of the system in order to secure a conviction by resorting to dirty tricks such as trying to get a good defense attorney removed for spurious reasons (such as the prosecution might be stupid enough to call him as a witness). And that same defense attorney might suspect that there is an unspoken collusion between the judge and prosecutor which allows such a sham because everything possible has to be done to assure that the guilty defendant is convicted. The government went after Gotti's first lawyer and sent him to jail for 15 years. Then Cutler won two cases defending Gotti. In the third trial Cutler was removed from representing Gotti at the government's insistence. Then Cutler was tried for contempt and they tried to get a grand jury to indict him. He got six months house arrest for the contempt and must have been harder to indict than a ham sandwich because the government gave up after three years of trying.
The third was In America's Court: How a civil Lawyer Who Likes to Settle Stumbled into a Criminal Trial by Thomas Geoghegan. It's about how a civil lawyer is affected when he sits thru a jury trial and is exposed to the way a courtroom really works. He flails about and doesn't do or say anything useful. Then, at the end of the book, he just goes off into his own personal fantasyland where the U.S.'s laws are abrogated by useless international treaties which nobody follows. He just ends up on a leftist rant and even gets weirder at parts talking about "Kimberlys" and I've already quoted part of it here.
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Slavery Reparations?
Jury of their Peers?
As I have said before, you have to respect their audacity. However, when that jury drawn from all over the Eastern District of Virginia walks into the court room I think they are going to be in for a shock. All those rural people are not going to be sympathetic a couple city types who tried to do something fancy. They are not going to engage in jury nullification and the judge is not likely to allow much wandering into things which don't prove the inclusion or non-inclusion (and knowledge thereof) of a slave reparation law in the tax code or regulations.
Mother holds son at gunpoint in police standoff
This woman deserves every last minute the judge gives her for Abduction, Escape, Grand Larceny Auto, Felony Vandalism, and Attempted Capital Murder. Anyone who puts a kid thru this pretty much qualifies for the death penalty in my book (and I don't believe in the death penalty so it takes a lot to get me there).
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This woman deserves every last minute the judge gives her for Abduction, Escape, Grand Larceny Auto, Felony Vandalism, and Attempted Capital Murder. Anyone who puts a kid thru this pretty much qualifies for the death penalty in my book (and I don't believe in the death penalty so it takes a lot to get me there).
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Fixing the 21 Day Rule:
"I don't care what other states have. Time limits are not as important as standards of evidence."
By Jove, I think he's got it!! The fix which would make the most sense would be to entirely do away with the time restriction and impose a "clear and convincing" standard instead.
Yes, it would cause more cases to be put in front of the courts but not overly many for "normal" felonies. Most of the men doing long stretches in prison don't have the money. The one place it could cause trouble is with death penalty cases wherein it could cause case after case to be filed in Circuit Court as "new" evidence, no matter how minor. Maybe this could short-circuited by not allowing the Circuit Court to issue stays of executions (at least not unless a prima facie case has been made). I'm shooting from the hip here so I probably haven't seen all the potential problems and pitfalls but it's got to be better than what we have now.
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Oh Canada!
A pretty scathing indictment from someone even further North than the New York Times. It follows the breakdown of prohibitions in the U.S. of ex post facto laws, the loss of mens rea as something which must be proven in court, and the growth of overabundant plea bargaining.
About the only thing missing is an analysis of how the double jeopardy prohibition doesn't really mean you can't be tried for the same thing again.
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A pretty scathing indictment from someone even further North than the New York Times. It follows the breakdown of prohibitions in the U.S. of ex post facto laws, the loss of mens rea as something which must be proven in court, and the growth of overabundant plea bargaining.
About the only thing missing is an analysis of how the double jeopardy prohibition doesn't really mean you can't be tried for the same thing again.
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Sentenced to Death in Yemen
"Kamel condemned the verdict, saying he should have been tried by an Islamic court and not a civil court.
His lawyer said he would appeal against the sentence, which is usually enforced by firing squad.
"The ruling is a political one and violates Islamic Sharia law," Kamel told the court in Ebb province, 170 kilometres (105 miles) south of the capital Sanaa."
I've got a little bit of experience in Islamic countries so I know "eye for an eye" is still thought well of there. He must mean that a Muslim can't be killed just because he went into a hospital and killed a bunch of Christian doctors.
Not much needed in the way of commentary. Yemen seems to be taking care of the problem.
"Kamel condemned the verdict, saying he should have been tried by an Islamic court and not a civil court.
His lawyer said he would appeal against the sentence, which is usually enforced by firing squad.
"The ruling is a political one and violates Islamic Sharia law," Kamel told the court in Ebb province, 170 kilometres (105 miles) south of the capital Sanaa."
I've got a little bit of experience in Islamic countries so I know "eye for an eye" is still thought well of there. He must mean that a Muslim can't be killed just because he went into a hospital and killed a bunch of Christian doctors.
Not much needed in the way of commentary. Yemen seems to be taking care of the problem.
09 May 2003
OFF POINT
From In America's Court by Thomas Geoghegan
"But what of the young women who . . . go to work in the big firms? Some never get out. They get addicted. But others do. I somehow believe that a young woman like this has to check into a hotel, shut the door . . . and for a month or so go into withdrawal. That's how she gets off the $165,000 a year.
I saw one back out on the street the other day. Once, she was in a big firm that let her go. But I knew this even before she told me. She had a washed-out-but-I'm-better sort of look. How to put this? Maybe . . . she had lost her "powers." She can't levitate anymore. She's fallen back to earth. Now she's one of us.
You even think, you could marry her now. But after the Ecstacy, the levitating . . . well, you have to wonder what the baby would look like."
Hmmm . . . more on this book later.
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Gideon's Promise points out a case where a Judge has actually stopped the government from manipulating the process so that a defendant does not have the money to defend himself.
"While the government denies it, the likelihood is that in Scrushy's case as in many others, the use of parallel proceedings has been designed to cripple any possible defense in the criminal case but undercutting Scrushy's ability to fund his defense. This problem though all too common is not often resolved with a judge calling one against the government, but when it occurs it is worthy of mention and praise."
This is a dead on analysis. The government doesn't like it when a defendant has the ability to match it blow for blow. Too much chance of turning out like O.J. or the first couple Gotti cases.
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"I think there's some symbolism in me coming to a conservative college in the South where Robert E. Lee is buried. I did the best I could to give his memory a different flavor by visiting him. Imagine how it's going to play in Harlem."
AL Sharpton visited the General's school. Gotta give him credit. If Lee's Chapel looks like it did when I went to law school there (it does) there are Confederate flags everywhere and Lee's statue lying in repose in the center. I can't think of any other minority leader who would take pictures right smack-dab in the middle of it all.
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A defendant's sentence is suspended. Then the Judge makes a stupid comment. The Judge is moved to civil court. The defendant then gets the sentence re-imposed as active time.
Huh? Don't they have double jeopardy in New Jersey?
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Good Gracious. The British might do away with wigs in the courtroom just because they don't serve any purpose. What's next? No more tea and biscuits? Will they learn to spell "theater" and "jail" correctly? Will they learn that a boot is a type of footgear, flat is is an adjective instead of a noun, and "Q" is just a letter?
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A scam based upon the the new no-call list has been called out by the FTC. Scamming out of laws meant to stop scams. Impressive.
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Republican Senators are trying to get around the judicial filibuster by changing the filibuster rules. But they need 60 votes to do that too. Doubtful.
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Transcripts v. Reality |
| Over at The Buck Stops Here, Matt Evans comments that upon reading a federal supreme court transcript he "was struck by how very few instances there are where anyone utters more than two sentences in a row that are structurally and grammatically flawless." | I see a similar thing each and every time I get a trial transcript. I flip to that number one, primo, most excellente, amazingly wonderful closing argument that I remember making and suddenly I am reading the rantings of a drooling idiot who has problems completing a sentence or even a thought.
The reality, of course, is that there is an interaction occurring which the transcript cannot portray. There is a shared thought process in the courtroom during an argument. You know Judge Smith and can see he's just about to shred you for the argument you're making or that he's already convinced. You don't know the jurors personally but you've started to make a particular argument and juror number 7 (who you think is sympathetic to your client) rolls her eyes. If you are any good at all you react to these things as quickly as possible. As well, when most people argue something with passion there are incomplete sentences and thoughts but you score points because the jury feels with you. |
08 May 2003
Prison Health Care |
| "In spite of the high price, there is evidence that the medical care delivered in Virginia's prisons is inadequate and substandard." | I'm not a health expert but I can say that I have a lot of clients who complain about their mental health medicine being taken away when they get in jail because "they don't need it." I don't give much credence to my clients who talk about addictive pain killers being replaced with Tylenol but when expensive, nonaddictive, mental health medicine is denied I have to admit I get suspicious. |
Anti-death penalty activists are still fighting to get DNA tested in order to prove someone was killed who was not guilty.
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Can't really defend the spammers although they seem to have some pity for them in Roanoke. I don't like the criminalization of things which I think are a better fit under civil penalties especially when even the providers aren't sure it will accomplish anything. I suspect that spam will start coming from outside the borders much like the gambling does.
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The Ashland police force, already strectched, is going to get hit HARD when the new Wal Mart opens.
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El-Amin has 19 more charges filed against him. They are going to make sure he's buried before trial.
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"The Virginia Supreme Court is known throughout the nation as a rubber-stamp court," Mello said. "It's no accident that ... Virginia (has) had so many executions."
But Virginia did remand this case for a technicality.
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