Ok, I'm a little scatterbrained as I'm supposed to be finishing a voir dire prep for a trial on Monday, but I need the distraction for a moment. So, as opposed to my usual pontifications, this week's posting is going for more of a 'shotgun' approach.
TRUTH:
Not that I can tell that anyone has actually visited this page other than myself lately, but I do want to apologize to whomever might have actually visited this site more than once in the past three weeks for the last of a posting. My justification (no, not excuse, but justification) for the delay is that I picked up some sort of nasty cold bug that just happened to coincide with the start of the fall allergy season. Whippee....
JUSTICE
Where to start? There's the growing nonsense over in Hunt County, Texas where some intrepid Assistant D.A. actually INSTRUCTED the Sheriff of the jail to record and turn over phone calls between the accused defendant and his attorney.
Are the fundamental precepts of the attorney-client privilege and the cannon of ethics COMPLETELY foreign to these people?
Then, of course, there's O.J. I think I might actually have something constructive to say on this. O.J. has been accused, and I dare say proven, to be a self-centered narcissistic bastard. Descriptions of his recent behavior, however, lead me to believe that his narcissism has reached (or returned) to a pathological level. One should, were one interested, review the diagnostic description and listing of NARCISSISTIC PERSONALITY DISORDER in the DSM-IV.
I've got a couple of other ideas percolating for future postings, but I'll leave it there for now.
PERFECT PIZZA
Last night, a friend (and fellow criminal defense attorney) and I caught a late showing of the movie. SHOOT 'EM UP starring Clive Owen, Monica Belluci, and an over-the-top Paul Giamatti.
And the simplest review is this: it's GUN PORN. There are loving shots of guns. There are action shots of guns. You see guns undressed. You see guns stroked, prodded, shoved, you name it. Hell, there is literally a sex scene in the middle of a gun fight (is that a gun fight in the middle of a sex scene?)
And, admittedly, it's fun. It's over the top and is NOT to be taken seriously. This is NOT a film in the vein of the Bourne Supremacy. It gives as much fealty to the fundamental laws of physics that Michael Bay did in TRANSFORMERS.
There's no need to mention a plot because what little plot there is exists solely to serve the various 'set pieces' of action.
Worth a view? Sure. Worth a repeat? Eh, not so much . . .
Well, time to head back to the preparation of the State v. Dashawn Brown, which probably means at least another ten day delay in my next posting.
Until next time . . .
Friday, September 21, 2007
Friday, September 07, 2007
The Death of Formality
JUSTICE:
It has seemed to me, of late, that we as lawyers no longer impart to our clients – and apparently this failing also extends to Judges, Prosecutors, and Court Staff – the sense of formality, ritual, or “mystery” (as used in a quasi-religious context) to the criminal justice system.
Informality, in my opinion, allows and perhaps encourages a ‘slapdash’ approach to the practice of law. We (and as a mea culpa, I do include myself in this) negotiate terms and conditions of plea bargains ‘on the fly’ with Prosecutors in unsecure, semi-public workrooms in Dallas County. Very serious consequences are routinely discussed in casual, even flippant terms (I, myself, am perhaps more guilty than most of this). We (yup, still me too) admonish our clients of the consequences of waiving their fundamental constitutional rights in a period of time that is measured in minutes, if not seconds.
As I was writing some of these words, I was in court observing a plea and sentencing for a defendant’s case that is at least a 2nd degree felony drug crime. The defendant was standing with his attorney in front of the judge giving testimony. The prosecutor was leaning against the witness stand. (Again, these are things that I myself have done routinely.)
Perhaps the court system is overcrowded. Perhaps the system would break down if every case were treated with the kind of formality that is required both by ethical standards and by statute for capital cases. Granted, the possible consequences of a capital case far eclipse any other type of case, but does not the defendant charged with a class ‘b’ misdemeanor enjoy the same basic rights and privileges as the capital defendant. (I cannot in good conscience or with any degree of intellectual honesty state that traffic offenses and other class ‘c’ offenses are the same as they are punishable by fine only and most can be readily expunged upon completion of a deferred adjudication probation.) However, the interests of the “system” seem to be outweighing the interests of the interests of the defendant.
I am an officer of the Court. I do owe an ethical duty to the system. But surely, my first duty must be to the client and their interests.
It is, in my opinion, a side-effect of this increasingly ‘cookie-cutter’ approach to the criminal justice system is that the defendant, the very person with whom we are charged (and hopefully compensated by) with representing, no longer treats with respect, fear, or awe the very system that has them in their thrall.
At its essential core, the criminal justice system is in the business of curtailing a defendant’s liberty. From the time a defendant is charged with a criminal offense, his or her freedom, his basic right to go where they choose when they choose is curtailed to one degree or another. At a minimum, they are commanded to appear in Court (or at least the hallway) for some period of time until their cases are “handled.” At worst, they are confined while their case is pending. The most common outcome of a criminal case fully involves the curtailing of a defendant’s liberty (as 95% of all cases resolve in plea bargains).
And yet, at least in my practice, the average defendant treats the criminal justice system with an alarming degree of disrespect. Is it a function of society? Probably. On the other hand, at least some of the cause can be attributed to the lack of formality that is present (at least at the Dallas County Courthouse).
I don’t know what the answer is. And I’m intellectually honest enough to admit that maybe this is just a pet issue of mine that few, if any, share. At some rate, however, I feel as though some of the really important elements of the practice of law and the representation of a defendant’s rights are being infringed, if not suppressed, by this lack of formality.
Formality is slow. Formality is often cumbersome. Formality often scares away those who are uncomfortable with being told where they are to stand, and how the Courts are to be addressed, and that there are specific rules to be followed. But formality protects. Formality ensures that rights are considered. Formality ensures that the defendant is made aware that the system takes their rights seriously, and that so should they.
Prior to the virtual democratic sweep of the Dallas County Courthouse, Governor Good-hair (Rick Perry) had appointed Becky Gregory to the vacant 283rd District Court. While I had strong disagreements with some of her rulings (as she was, in my ever-so-not-humble opinion ridiculously State’s oriented), I actually enjoyed the ‘federal’ approach that she took to the court. Was it slow and cumbersome? You bet. But, for that brief moment in time, the client knew that the judge, the prosecutor, and their attorney had all of their attention solely focused on their case. Did it have any effect on the defendant’s attitude? Probably not, but who can say?
The practice of law is not a manufacturing process. It should not boil down to “insert tab A into slot B.” It should be formal. It should be important. It should be slightly . . . mysterious.
However, in the words of Dennis Miller, “hey, I could be wrong . . . “
It has seemed to me, of late, that we as lawyers no longer impart to our clients – and apparently this failing also extends to Judges, Prosecutors, and Court Staff – the sense of formality, ritual, or “mystery” (as used in a quasi-religious context) to the criminal justice system.
Informality, in my opinion, allows and perhaps encourages a ‘slapdash’ approach to the practice of law. We (and as a mea culpa, I do include myself in this) negotiate terms and conditions of plea bargains ‘on the fly’ with Prosecutors in unsecure, semi-public workrooms in Dallas County. Very serious consequences are routinely discussed in casual, even flippant terms (I, myself, am perhaps more guilty than most of this). We (yup, still me too) admonish our clients of the consequences of waiving their fundamental constitutional rights in a period of time that is measured in minutes, if not seconds.
As I was writing some of these words, I was in court observing a plea and sentencing for a defendant’s case that is at least a 2nd degree felony drug crime. The defendant was standing with his attorney in front of the judge giving testimony. The prosecutor was leaning against the witness stand. (Again, these are things that I myself have done routinely.)
Perhaps the court system is overcrowded. Perhaps the system would break down if every case were treated with the kind of formality that is required both by ethical standards and by statute for capital cases. Granted, the possible consequences of a capital case far eclipse any other type of case, but does not the defendant charged with a class ‘b’ misdemeanor enjoy the same basic rights and privileges as the capital defendant. (I cannot in good conscience or with any degree of intellectual honesty state that traffic offenses and other class ‘c’ offenses are the same as they are punishable by fine only and most can be readily expunged upon completion of a deferred adjudication probation.) However, the interests of the “system” seem to be outweighing the interests of the interests of the defendant.
I am an officer of the Court. I do owe an ethical duty to the system. But surely, my first duty must be to the client and their interests.
It is, in my opinion, a side-effect of this increasingly ‘cookie-cutter’ approach to the criminal justice system is that the defendant, the very person with whom we are charged (and hopefully compensated by) with representing, no longer treats with respect, fear, or awe the very system that has them in their thrall.
At its essential core, the criminal justice system is in the business of curtailing a defendant’s liberty. From the time a defendant is charged with a criminal offense, his or her freedom, his basic right to go where they choose when they choose is curtailed to one degree or another. At a minimum, they are commanded to appear in Court (or at least the hallway) for some period of time until their cases are “handled.” At worst, they are confined while their case is pending. The most common outcome of a criminal case fully involves the curtailing of a defendant’s liberty (as 95% of all cases resolve in plea bargains).
And yet, at least in my practice, the average defendant treats the criminal justice system with an alarming degree of disrespect. Is it a function of society? Probably. On the other hand, at least some of the cause can be attributed to the lack of formality that is present (at least at the Dallas County Courthouse).
I don’t know what the answer is. And I’m intellectually honest enough to admit that maybe this is just a pet issue of mine that few, if any, share. At some rate, however, I feel as though some of the really important elements of the practice of law and the representation of a defendant’s rights are being infringed, if not suppressed, by this lack of formality.
Formality is slow. Formality is often cumbersome. Formality often scares away those who are uncomfortable with being told where they are to stand, and how the Courts are to be addressed, and that there are specific rules to be followed. But formality protects. Formality ensures that rights are considered. Formality ensures that the defendant is made aware that the system takes their rights seriously, and that so should they.
Prior to the virtual democratic sweep of the Dallas County Courthouse, Governor Good-hair (Rick Perry) had appointed Becky Gregory to the vacant 283rd District Court. While I had strong disagreements with some of her rulings (as she was, in my ever-so-not-humble opinion ridiculously State’s oriented), I actually enjoyed the ‘federal’ approach that she took to the court. Was it slow and cumbersome? You bet. But, for that brief moment in time, the client knew that the judge, the prosecutor, and their attorney had all of their attention solely focused on their case. Did it have any effect on the defendant’s attitude? Probably not, but who can say?
The practice of law is not a manufacturing process. It should not boil down to “insert tab A into slot B.” It should be formal. It should be important. It should be slightly . . . mysterious.
However, in the words of Dennis Miller, “hey, I could be wrong . . . “
Tuesday, September 04, 2007
Westmoreland's Rules of Practice
A Work in Progress and in No Particular Order
I.
THE POWER OF THE WRITTEN WORD
If it isn’t written down, it never happened.
II.
ABSOLUTE TRUTH:
Be true to yourself, Be true to others. Excepting areas of confidentiality & privilege, be as open and honest as is possible.
III.
PLAN YOUR WORK, WORK YOUR PLAN
As much as is possible, be deliberate and be proactive. Reactive thought and action lead to carelessness, and carelessness leads to mistakes.
IV.
EXPECT DELAYS
Nothing in this world moves as quickly as you would want or would like: Everything takes longer than you think it should.
V.
IT TAKES A VILLAGE . . .
Where possible, ask for help. When possible, give it in return
VI.
COMMUNICATE & COLLABORATE
Client communication is key: A client who gets talked to is a client who won’t complain.
VII.
DEMAND EXCELLENCE
But realize that you can only demand it from yourself, you can only ask for it from others.
VIII.
THE IMPORTANCE OF RITUAL
Where possible, when possible, seek routine. Routine allows for natural rhythm, and, depending on personality, maximizes efficiency
IX.
ETIQUETTE’S LIMIT
Make no apology where none is called for.
X.
YOU’RE ONLY HUMAN
It is simply impossible for everything to receive equal attention at all times. Accept this. Deal with it. That said, knowledge and management of tasks and their placement on the urgent / importance axis will allow you to maximize your efficiency.
XI.
THE FORTRESS OF SOLITUDE
Build in ‘recharge time’ into your life. For me, it needs to be regular and away from the city.
XII.
CLOTHES MAKE THE MAN
The sad fact is that people’s opinions of lawyers and how lawyers should act are largely based on what they see on dramatic television. Therefore, dress, speak, and act accordingly. This does NOT mean that you run around saying “Denny Crane” to people. However, this is a profession, and you should at all times appear, speak, and act professionally.
XIII.
UNDER-PROMISE, OVER-PERFORM:
Clients will latch on to even the most innocuous of commitments that you give them, and even the most minor of broken commitments will create conflict between you and the client. Therefore, be vague and general in your promises, but exacting and specific in your performance. Delivering on your commitments and more will only enhance your reputation with the client, and will therefore greatly enhance their likelihood of paying you!
XIV.
IT’S NOT PERSONAL, IT’S BUSINESS
Clients, generally speaking, like frank talk about fees. Be explicit, be professional, and demand to be paid what you are worth. The sad reality is that not every potential client can afford to hire you. Taking a case for less than what you deserve, or worse, less than what you need, will only create stress and conflict between you, the client, and the court.
XV.
IT’S NOT PERSONAL, IT’S BUSINESS (again)
Carrying a client who refuses to pay according to whatever terms of a payment agreement have been worked out is not worth your time, generally speaking. Failing to pay the attorney with whom they have entrusted their particular legal problem is a clear sign of just how much (or how little) value they put on the issue.
XVI.
IT’S NOT BUSINESS, IT’S PERSONAL
Obviously, keeping the preceeding rules in mind, you cannot expect the client to put paying you above paying for the necessities – Food, Clothing, Shelter, and Transportation [this is a necessity, I don’t give a damn what that fool Maslow says] – but the client must understand that you are the first of the rest. Dinners out, the cable bill, even little Johnny’s birthday present should all come after paying the lawyer.
I.
THE POWER OF THE WRITTEN WORD
If it isn’t written down, it never happened.
II.
ABSOLUTE TRUTH:
Be true to yourself, Be true to others. Excepting areas of confidentiality & privilege, be as open and honest as is possible.
III.
PLAN YOUR WORK, WORK YOUR PLAN
As much as is possible, be deliberate and be proactive. Reactive thought and action lead to carelessness, and carelessness leads to mistakes.
IV.
EXPECT DELAYS
Nothing in this world moves as quickly as you would want or would like: Everything takes longer than you think it should.
V.
IT TAKES A VILLAGE . . .
Where possible, ask for help. When possible, give it in return
VI.
COMMUNICATE & COLLABORATE
Client communication is key: A client who gets talked to is a client who won’t complain.
VII.
DEMAND EXCELLENCE
But realize that you can only demand it from yourself, you can only ask for it from others.
VIII.
THE IMPORTANCE OF RITUAL
Where possible, when possible, seek routine. Routine allows for natural rhythm, and, depending on personality, maximizes efficiency
IX.
ETIQUETTE’S LIMIT
Make no apology where none is called for.
X.
YOU’RE ONLY HUMAN
It is simply impossible for everything to receive equal attention at all times. Accept this. Deal with it. That said, knowledge and management of tasks and their placement on the urgent / importance axis will allow you to maximize your efficiency.
XI.
THE FORTRESS OF SOLITUDE
Build in ‘recharge time’ into your life. For me, it needs to be regular and away from the city.
XII.
CLOTHES MAKE THE MAN
The sad fact is that people’s opinions of lawyers and how lawyers should act are largely based on what they see on dramatic television. Therefore, dress, speak, and act accordingly. This does NOT mean that you run around saying “Denny Crane” to people. However, this is a profession, and you should at all times appear, speak, and act professionally.
XIII.
UNDER-PROMISE, OVER-PERFORM:
Clients will latch on to even the most innocuous of commitments that you give them, and even the most minor of broken commitments will create conflict between you and the client. Therefore, be vague and general in your promises, but exacting and specific in your performance. Delivering on your commitments and more will only enhance your reputation with the client, and will therefore greatly enhance their likelihood of paying you!
XIV.
IT’S NOT PERSONAL, IT’S BUSINESS
Clients, generally speaking, like frank talk about fees. Be explicit, be professional, and demand to be paid what you are worth. The sad reality is that not every potential client can afford to hire you. Taking a case for less than what you deserve, or worse, less than what you need, will only create stress and conflict between you, the client, and the court.
XV.
IT’S NOT PERSONAL, IT’S BUSINESS (again)
Carrying a client who refuses to pay according to whatever terms of a payment agreement have been worked out is not worth your time, generally speaking. Failing to pay the attorney with whom they have entrusted their particular legal problem is a clear sign of just how much (or how little) value they put on the issue.
XVI.
IT’S NOT BUSINESS, IT’S PERSONAL
Obviously, keeping the preceeding rules in mind, you cannot expect the client to put paying you above paying for the necessities – Food, Clothing, Shelter, and Transportation [this is a necessity, I don’t give a damn what that fool Maslow says] – but the client must understand that you are the first of the rest. Dinners out, the cable bill, even little Johnny’s birthday present should all come after paying the lawyer.
Friday, August 31, 2007
I have . . . returned?
TRUTH
Ok, so I didn't exactly keep true to my word to try to update this . . . whatever it is. That said, I once again feel the -- what? A muse? A sudden drive? Desire? -- to restart this ever so modest attempt at commentary.
At its core, I suppose, its a small opportunity to see my words in print. As my birthday has come and gone, and I am now standing over the halfway point to 40, my soul calls for introspection.
Who knows? Maybe I will actually follow up this time.
More later . . .
Ok, so I didn't exactly keep true to my word to try to update this . . . whatever it is. That said, I once again feel the -- what? A muse? A sudden drive? Desire? -- to restart this ever so modest attempt at commentary.
At its core, I suppose, its a small opportunity to see my words in print. As my birthday has come and gone, and I am now standing over the halfway point to 40, my soul calls for introspection.
Who knows? Maybe I will actually follow up this time.
More later . . .
Saturday, February 04, 2006
Alito: A Bork in Sheep's Clothing ?
JUSTICE:
Well, I had intended this use this entry to excoriate the Executive-in-Chief over his State of the Union speech from this week, but a (very wise) comment led me to a different intellectual examination. Robin Bisha, who writes the very heartfelt Woman Hollerin', expressed concern that Alito and Bork might be 'cut from the same cloth', as it were, and shared my dismay that whereas twenty years ago, a mighty groundswell of opposition led to his nomination's rejection, today we saw but a relative whimper of real and sustained opposition.
Now, it has been a LOOOOoooooonnnnnnnngggggg time since my Constitutional Law class, and I really haven't spent the kind of quality time analyzing Bork's writings, opinions (of which there are MANY since his rejection - then again a highly paid cush job at the American Enterprise Institute does grant you lots and lots of free time to wax rhetorically) to do a comprehensive analysis, but while Alito's eventual jurisprudence will be undoubtedly conservative, I don't think that he's Bork-ian.
Bork, as memory serves (supplanted by a little quick Googling), takes not just a conservative view of the Constitution, but rather an ORIGINALIST view. Bork has ZERO respect for the precedence value of prior decisions from courts that he feel were based on faulty principles or where the Court input itself into areas where he felt that the Constitution's founders couldn't have possibly envisioned. Absent constitutional revision, argued the bearded Bork, the Court shouldn't have done MANY of the things we have lauded the Supreme Court for deciding.
Alito, by comparison, seems to be more of a STRICT CONSTRUCTIONALIST. Using a geometry analogy, it might be fair to say that all Originalists are Strict Constructionalists, but not all Strict Constructionalists are Originalists.
One of the largest areas of difference is, if I recall correctly, between them is whether the 14th Amendment (especially the Due Process and Equal Protection Clauses) act to apply federal constitutional protections and standards to the individual States. Bork (again, working from dim memory here) believes that the Court frequently uses the 14th Amendment as a device to reach into State action that he feels lacks a constitutional dimension, whereas a similar principle seems to lacking in Alito's viewpoints. Granted, Alito is staunchly conservative, but at least has paid lip service (in the hearings) to respecting the power and principles of the current Court.
Only time will tell, as in most things. I was somewhat heartened by Alito's first vote as a sitting justice. For those of you who missed it, Alito actually broke with the 'conservative wing' of the Court, and voted to deny lifting a stay of execution. At issue in the Taylor case was whether the State's manner of execution was cruel and unusual. Pay attention kiddies, whether the manner of execution was cruel and unusual, not whether the execution itself was cruel and unusual. Scalia, Thomas, and newly installed Chief Justice Roberts (who is the one I'm more worried about), said that the stay of execution should be lifted. The majority of judges, including Alito, decided that the stay should remain in effect while the lower court continues to consider this issue.
While the order continuing the stay lacks any reasoning or explanation (copy of order available at http://www.supremecourtus.gov/orders/courtorders/020106pzr.pdf ) I would bet next year's bar dues that Alito's vote was somewhat predicated on his belief that this question is not yet resolved to a sufficient level of constitutional certainty. As some of you may be aware, a case from Florida (whose name and citation escapes me for the moment) has been accepted by the Supreme Court for review later this term. While the issue remains unresolved, it seems that a stay of execution is the prudent course of action.
Look for more comment on this and other death penalty issues as the Court considers the case.
Again, thanks Robin for leading me to this topic.
Later . . . .
Well, I had intended this use this entry to excoriate the Executive-in-Chief over his State of the Union speech from this week, but a (very wise) comment led me to a different intellectual examination. Robin Bisha, who writes the very heartfelt Woman Hollerin', expressed concern that Alito and Bork might be 'cut from the same cloth', as it were, and shared my dismay that whereas twenty years ago, a mighty groundswell of opposition led to his nomination's rejection, today we saw but a relative whimper of real and sustained opposition.
Now, it has been a LOOOOoooooonnnnnnnngggggg time since my Constitutional Law class, and I really haven't spent the kind of quality time analyzing Bork's writings, opinions (of which there are MANY since his rejection - then again a highly paid cush job at the American Enterprise Institute does grant you lots and lots of free time to wax rhetorically) to do a comprehensive analysis, but while Alito's eventual jurisprudence will be undoubtedly conservative, I don't think that he's Bork-ian.
Bork, as memory serves (supplanted by a little quick Googling), takes not just a conservative view of the Constitution, but rather an ORIGINALIST view. Bork has ZERO respect for the precedence value of prior decisions from courts that he feel were based on faulty principles or where the Court input itself into areas where he felt that the Constitution's founders couldn't have possibly envisioned. Absent constitutional revision, argued the bearded Bork, the Court shouldn't have done MANY of the things we have lauded the Supreme Court for deciding.
Alito, by comparison, seems to be more of a STRICT CONSTRUCTIONALIST. Using a geometry analogy, it might be fair to say that all Originalists are Strict Constructionalists, but not all Strict Constructionalists are Originalists.
One of the largest areas of difference is, if I recall correctly, between them is whether the 14th Amendment (especially the Due Process and Equal Protection Clauses) act to apply federal constitutional protections and standards to the individual States. Bork (again, working from dim memory here) believes that the Court frequently uses the 14th Amendment as a device to reach into State action that he feels lacks a constitutional dimension, whereas a similar principle seems to lacking in Alito's viewpoints. Granted, Alito is staunchly conservative, but at least has paid lip service (in the hearings) to respecting the power and principles of the current Court.
Only time will tell, as in most things. I was somewhat heartened by Alito's first vote as a sitting justice. For those of you who missed it, Alito actually broke with the 'conservative wing' of the Court, and voted to deny lifting a stay of execution. At issue in the Taylor case was whether the State's manner of execution was cruel and unusual. Pay attention kiddies, whether the manner of execution was cruel and unusual, not whether the execution itself was cruel and unusual. Scalia, Thomas, and newly installed Chief Justice Roberts (who is the one I'm more worried about), said that the stay of execution should be lifted. The majority of judges, including Alito, decided that the stay should remain in effect while the lower court continues to consider this issue.
While the order continuing the stay lacks any reasoning or explanation (copy of order available at http://www.supremecourtus.gov/orders/courtorders/020106pzr.pdf ) I would bet next year's bar dues that Alito's vote was somewhat predicated on his belief that this question is not yet resolved to a sufficient level of constitutional certainty. As some of you may be aware, a case from Florida (whose name and citation escapes me for the moment) has been accepted by the Supreme Court for review later this term. While the issue remains unresolved, it seems that a stay of execution is the prudent course of action.
Look for more comment on this and other death penalty issues as the Court considers the case.
Again, thanks Robin for leading me to this topic.
Later . . . .
Tuesday, January 31, 2006
Sam, your robe is waiting . . .
TRUTH / JUSTICE:
And so, it came to pass, that on the 31st day of January, in the year-of-our-lord (or other appropriate deity), in the District of Columbia, a significant event in American jurisprudence has come and gone with all but the smallest of notice.
Granted, there are MANY things to occupy our attention this day. We have lost a great woman, who was an icon to some (myself, included), and so we wish you godspeed Coretta Scott King, and thank you for your tireless dedication to improving race relations in our society. May we all strive to continue your legacy.
(Ok, so I'm being just a little over the top here, but hey, show some respect for the dead).
Where was I? Oh yes, things to occupy our attention this day. George W. Bush stands this evening and offers us his FIFTH State of the Union address. Now, I will plainly admit to being no fan of President Bush, and have so very little good to say about his administration. But for now, not having heard the actual speech, I will save what I can only expect will be a extremely violent eruption of words and criticism for the Executive-in-Chief until later. What I will mention is this: NPR and other news sources have mentioned that the speech tonight, without counting breaks for applause, will last 38 minutes. Now, I realize that NO ONE (including me) yearns to return to the days of William Jefferson Clinton and the 90 plus minute speeches. (Well, ok, maybe I do miss them once in a while, but still, 90 minutes? )
All I'm going to say at this point is this: your average hour long television drama lasts 42 minutes of actual broadcast footage. Is it too much to ask that the President spend AT LEAST that much time presenting his ideas for the country? Just a thought . . .
And, we note with continuing concern, the plight of ABC News co-Anchor Bob Woodruff, who continues to struggle with wounds he received while reporting on the state of chaos in Iraq.
But somewhat diminished in all that chatter was the beginning of Samuel Alito's term on the United States Supreme Court. I will avoid lavishing overwhelming praise on departing Justice Sandra Day O'Connor, who rightly is being heralded as one of the great minds and moderating influences on the Court during the birth of the information age. (Oops, there I go, when I said I wouldn't . . . )
But, despite the rabble rousing from some of my fellow liberal brethren, I am not so awfully afraid of Justice Alito. While many heard hemming and hawing during the confirmation hearings, I was largely struck by Judge Alito's patience with dealing with committee members who were either (a) completely unschooled in the way that appellate decisions are formed, and the intellectual rigors that are required for truly good jurisprudence; (b) just plain less intelligent than he is; or (c) just plain unintelligent.
True, Justice Alito is probably most likely going to be as conservative oriented in his opinions as Justice Scalia. True, many of his opinions seem to favor the power of the government over the power of the individual. But, having reviewed many of his opinions, including the oft-cited but rarely correctly analyzed decision in Doe v. Groody, a.k.a. the "Kid Strip Search" case, I find that the most consistent predictor of outcome is the quality of the lawyering. Judge, now Justice Alito, it seems to me takes a VERY narrow view of the question before him, and if a lawyer, either at the trial level or the appellate level, has NOT carefully crafted his or her argument and presented for review a clearly articulated ground for specific remedy, well, that's just too bad.
As to whether Judges should look beyond the articulated grounds in an appeal to the facts of a case to see that true justice should be done (in other words, should a lawyer's carelessness take away an individual's right to justice), well, that's a debate for another day (when I've got the mental stamina to consider it).
For now, anyway, I say hello Justice Alito. Let us now see how you REALLY think . . .
Later . . . .
And so, it came to pass, that on the 31st day of January, in the year-of-our-lord (or other appropriate deity), in the District of Columbia, a significant event in American jurisprudence has come and gone with all but the smallest of notice.
Granted, there are MANY things to occupy our attention this day. We have lost a great woman, who was an icon to some (myself, included), and so we wish you godspeed Coretta Scott King, and thank you for your tireless dedication to improving race relations in our society. May we all strive to continue your legacy.
(Ok, so I'm being just a little over the top here, but hey, show some respect for the dead).
Where was I? Oh yes, things to occupy our attention this day. George W. Bush stands this evening and offers us his FIFTH State of the Union address. Now, I will plainly admit to being no fan of President Bush, and have so very little good to say about his administration. But for now, not having heard the actual speech, I will save what I can only expect will be a extremely violent eruption of words and criticism for the Executive-in-Chief until later. What I will mention is this: NPR and other news sources have mentioned that the speech tonight, without counting breaks for applause, will last 38 minutes. Now, I realize that NO ONE (including me) yearns to return to the days of William Jefferson Clinton and the 90 plus minute speeches. (Well, ok, maybe I do miss them once in a while, but still, 90 minutes? )
All I'm going to say at this point is this: your average hour long television drama lasts 42 minutes of actual broadcast footage. Is it too much to ask that the President spend AT LEAST that much time presenting his ideas for the country? Just a thought . . .
And, we note with continuing concern, the plight of ABC News co-Anchor Bob Woodruff, who continues to struggle with wounds he received while reporting on the state of chaos in Iraq.
But somewhat diminished in all that chatter was the beginning of Samuel Alito's term on the United States Supreme Court. I will avoid lavishing overwhelming praise on departing Justice Sandra Day O'Connor, who rightly is being heralded as one of the great minds and moderating influences on the Court during the birth of the information age. (Oops, there I go, when I said I wouldn't . . . )
But, despite the rabble rousing from some of my fellow liberal brethren, I am not so awfully afraid of Justice Alito. While many heard hemming and hawing during the confirmation hearings, I was largely struck by Judge Alito's patience with dealing with committee members who were either (a) completely unschooled in the way that appellate decisions are formed, and the intellectual rigors that are required for truly good jurisprudence; (b) just plain less intelligent than he is; or (c) just plain unintelligent.
True, Justice Alito is probably most likely going to be as conservative oriented in his opinions as Justice Scalia. True, many of his opinions seem to favor the power of the government over the power of the individual. But, having reviewed many of his opinions, including the oft-cited but rarely correctly analyzed decision in Doe v. Groody, a.k.a. the "Kid Strip Search" case, I find that the most consistent predictor of outcome is the quality of the lawyering. Judge, now Justice Alito, it seems to me takes a VERY narrow view of the question before him, and if a lawyer, either at the trial level or the appellate level, has NOT carefully crafted his or her argument and presented for review a clearly articulated ground for specific remedy, well, that's just too bad.
As to whether Judges should look beyond the articulated grounds in an appeal to the facts of a case to see that true justice should be done (in other words, should a lawyer's carelessness take away an individual's right to justice), well, that's a debate for another day (when I've got the mental stamina to consider it).
For now, anyway, I say hello Justice Alito. Let us now see how you REALLY think . . .
Later . . . .
Sunday, January 29, 2006
A slow beginning . . .
And so, with a whimper, begins this latest attempt at one of the semi-educated masses to join the ranks of commentators and pundits, reviewers and researchers, and politicos and the just plain pissed.
So, just what do I have in mind for this small enterprise? Surely someone out there will want to know just what is the "Never Ending Search for Truth, Justice, and Perfect Pizza?" (Come on, surely SOMEONE out of the 3.8 BILLION people on this planet will EVENTUALLY want to know --- just consider me proactive).
Well, being a lawyer, it should come to no one's surprise that I enjoy the sound of my own voice, and so I continually look for ways to brandish what little intellectual and rhetorical gifts I have accumulated over the years. And following some advice I found on the great-and-powerful Google, I decided to choose a blog format that would enable me to comment on as broad a range of things as possible.
So, with little fanfare, let me explain my purpose. These are my OPINIONS. You may not agree with them. You may not like them. Then again, you don't have to READ them, either.
I hope -- let me repeat that -- hope to update this thing weekly. My comments, hopefully, will fall into one of three categories:
TRUTH: I will endeavor to tell you the truth. Most of the time, I plan to use this opportunity to point out things that more fully explain things that I feel have gotten smoothed over or lost in the chatter in the mass media. Again, these will be my opinions, and should in NO way be seen to be the absolute last word on ANYTHING. But, as Socrates once pointed out, an unexamined life is not worth living, and so I will try to take this opportunity to examine the truth of things that affect you, me, and the rest of the people on this big blue marble.
JUSTICE: I am a lawyer, and I love the law. The (purported) supremacy of the rule of law is one of the cornerstones of our civilization. I, myself, have taken an oath to protect, uphold, and defend the laws and Constitution of the United States, and the laws and Constitution of the great state of Texas. I've worked as a prosecutor, and now I work as a defense attorney. The law is near and dear to me, and I take GREAT offense when it is abused, maligned, misquoted, or otherwise misused. Expect lots and lots of semi-righteous indignation that come under this heading.
PERFECT PIZZA: As much as I sometimes like to pretend to the contrary, I am a consumer of pop culture and mass media, and have been known, from time-to-time, to follow a trend or two. I figure this is just my way of adding my two cents to things that may or may not be actually reported on Entertainment Tonight. Oh yeah, and I may add a comment on pizza from time to time.
Now, for the legal disclaimers:
1. Feel free to copy and/or quote from me as you see fit. I only ask that if I actually have an original thought and you want to borrow it, you give me a little credit. If it's an idea I've borrowed from someone else, and I've given them credit for it, please be sure to credit them.
2. Feel free to comment and criticize my reasoning, and to challenge my opinions. Please AVOID resorting to slurs, cursing, or questioning the validity of my parent's marriage at the time of my birth.
3. Any similarities to any persons, living or dead, is purely accidental, but perhaps intentional. In some cases the names have been changed to protect the innocent. For example, Dick Cheney is now known as Henry Kissinger. (with a nod to Dragnet).
Well, that's enough for one week, I suppose.
And so, I bid you all a goodbye.
Later . . . . .
So, just what do I have in mind for this small enterprise? Surely someone out there will want to know just what is the "Never Ending Search for Truth, Justice, and Perfect Pizza?" (Come on, surely SOMEONE out of the 3.8 BILLION people on this planet will EVENTUALLY want to know --- just consider me proactive).
Well, being a lawyer, it should come to no one's surprise that I enjoy the sound of my own voice, and so I continually look for ways to brandish what little intellectual and rhetorical gifts I have accumulated over the years. And following some advice I found on the great-and-powerful Google, I decided to choose a blog format that would enable me to comment on as broad a range of things as possible.
So, with little fanfare, let me explain my purpose. These are my OPINIONS. You may not agree with them. You may not like them. Then again, you don't have to READ them, either.
I hope -- let me repeat that -- hope to update this thing weekly. My comments, hopefully, will fall into one of three categories:
TRUTH: I will endeavor to tell you the truth. Most of the time, I plan to use this opportunity to point out things that more fully explain things that I feel have gotten smoothed over or lost in the chatter in the mass media. Again, these will be my opinions, and should in NO way be seen to be the absolute last word on ANYTHING. But, as Socrates once pointed out, an unexamined life is not worth living, and so I will try to take this opportunity to examine the truth of things that affect you, me, and the rest of the people on this big blue marble.
JUSTICE: I am a lawyer, and I love the law. The (purported) supremacy of the rule of law is one of the cornerstones of our civilization. I, myself, have taken an oath to protect, uphold, and defend the laws and Constitution of the United States, and the laws and Constitution of the great state of Texas. I've worked as a prosecutor, and now I work as a defense attorney. The law is near and dear to me, and I take GREAT offense when it is abused, maligned, misquoted, or otherwise misused. Expect lots and lots of semi-righteous indignation that come under this heading.
PERFECT PIZZA: As much as I sometimes like to pretend to the contrary, I am a consumer of pop culture and mass media, and have been known, from time-to-time, to follow a trend or two. I figure this is just my way of adding my two cents to things that may or may not be actually reported on Entertainment Tonight. Oh yeah, and I may add a comment on pizza from time to time.
Now, for the legal disclaimers:
1. Feel free to copy and/or quote from me as you see fit. I only ask that if I actually have an original thought and you want to borrow it, you give me a little credit. If it's an idea I've borrowed from someone else, and I've given them credit for it, please be sure to credit them.
2. Feel free to comment and criticize my reasoning, and to challenge my opinions. Please AVOID resorting to slurs, cursing, or questioning the validity of my parent's marriage at the time of my birth.
3. Any similarities to any persons, living or dead, is purely accidental, but perhaps intentional. In some cases the names have been changed to protect the innocent. For example, Dick Cheney is now known as Henry Kissinger. (with a nod to Dragnet).
Well, that's enough for one week, I suppose.
And so, I bid you all a goodbye.
Later . . . . .
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