Wednesday, November 19, 2014

Zen and Hardwood Floors

I have been regaling my friends on Facebook for the last few days with pictures and updates on a project my wife and I undertook to put a hardwood floor down in our den. As of about midnight last night, the construction was complete (a small piece of quarter round and a threshold cap have to be tacked down, but why quibble). As I was falling asleep last night, I kept coming back to something I had said to my wife earlier in the evening: "There's nothing like finish carpentry to keep you humble". I had said that after screwing up a miter cut on a piece of baseboard and having to re-do the entire piece. But I could have said it about construction as a whole. And the project reinforced and reminded me of some of the things that it is easy to forget in your day-to-day life. At least I forget them all the time.

Construction mandates precision. Or, should I say, good construction mandates precision. If you are off on your measurement, your cut, or any step along the way, your end product looks like hell. Or doesn't work at all. I remember one of my first ironworking jobs as a kid. We'd put up the girders and I-beams for a floor, and bolted them into place. Then, we strung heavy cables between the spans and used turnbuckles to crank the huge pieces of metal into plum. It ain't easy and takes a lot of muscle. I remember us being about a half -inch off on one and saying that that seemed close enough. The journeyman I was working with said (I'll excise the incredible profanity every sentence by an ironworker contains) "@#$(# kid, if every floor is half a #*@&$ing inch off, by the time we get to the top we'll be two @#*ing feet off).

So it was on this project. Every time my attention would wander, there would be a mistake. Sometimes that mistake would not reveal itself until it messed something up further along. Then you have to go back, find the mistake, and fix it. You have to stay in the moment and sweat the details. Cursing doesn't help, whining doesn't help, getting angry at your partner doesn't help. Trust me, I tried all of those. You have to pull it back, center, and focus on the task at hand and nothing else. Zen. There is a classic Zen aphorism, "before Enlightenment, chop wood and carry water; after Enlightenment, chop wood and carry water". In other words, the path (or the Way as some Zen philosophers term it) lies in paying attention to what is in front of you, and being fully in it. Doing it as well as you can, no matter its simplicity. If you are a fan of the old TV show M*A*S*H, in one episode someone asked the arrogant but brilliant surgeon, Dr. Charles Emerson Winchester, why he was such a great surgeon. His reply was "I do one thing at a time, I do it very, very well, and then I move on." In "The Book of Five Rings", a classic of martial arts literature, Miyamoto Musashi lays out nine precepts that the warrior should follow. One of those is: "Pay attention, even to the simple things."

Every job is like that, or can be. In my law practice, when I focus on the details, the big picture is always clearer. The police reports and witness statements have to be read again and again, because just because a cop says someone "confessed" does not make it so when you read it or listen to it. The pictures have to be looked at carefully and completely. I saw evidence of rigor in a picture once that I thought I had looked at three times before, and it changed the whole defense. And, at the most basic, you have to read the statute and see what it actually says, not what you "know" it says because you've been doing this so long. Focus, stay in the moment, pay attention to each step along the way. The end result will take care of itself. Good things to remember. And I got a pretty nice new den floor out of it, too.

Friday, October 31, 2014

Kaci Hickox--American

I have watched with fascination and, more and more frequently, outrage at the way Kaci Hickox, the nurse who had ventured to Sierra Leone to help treat Ebola patients and has now returned to the U.S., has been treated by the governments of New Jersey and Maine and by what appears to be a majority of the American public. At the risk of sounding like the stereotypical crotchety old guy (which I guess I am at this point of my life), what the hell has happened to America and Americans? When did we let fear shrivel us to this point? Kaci Hickox has demonstrated, and continues to demonstrate, the traits that I grew up believing embodied the best of America, and is being pilloried for it.

What makes an ideal American? What are the attributes that go into why the vast majority of our citizens, if you ask them, consider America "exceptional"? Consider just a few: courage, compassion for others, independence, a refusal to be bullied by the state (or anyone else). Kaci Hickox voluntarily went to one of the most dangerous places in the world right now, where health care workers like her are dying at alarming rates. I don't know what she got paid to do so, but I guarantee you it wasn't enough to convince me or most of you to do the same. She did so to help other people--to help them live. The word "hero" gets thrown around far too often these days. Well, Kaci Hickox and the people who are putting their lives on the line in order to try and stop Ebola from becoming a pandemic are heroes. So, courage? Check. Compassion for others? Check.

After doing all this, Kaci Hickox returns home. You know, to "the land of the free and the home of the brave". And didn't find much of either. She did the responsible thing, and told authorities that she was returning from West Africa and had been there helping treat Ebola patients. And the freakout commenced. Despite being completely asymptomatic, she was immediately treated as one of the unclean. Let's pause here for a second. If you are unwilling to accept the opinions of the experts that Ebola is not airborne and that a person with Ebola is only contagious when they are exhibiting symptoms, then just stop reading. It is better that you and I don't waste each other's time. The current American penchant for ignoring science is equally disturbing, but you cannot have a rational discussion of Ebola and ignore the doctors because you're scared. Professional bully Chris Christie then tried to make himself look like a man of action (don't get me started on Andrew Cuomo) and locked Hickox up. No, that is not an overstatement. That's what a quarantine is. Your 1st Amendment rights to assemble and travel, your 4th Amendment right to due process, arguably your 8th Amendment right to be free of excessive bail and cruel and unusual punishment are all summarily taken away. But, but, the public health,you say! I repeat, she is completely asymptomatic. There is not a shred of evidence that she has the disease, even in latent form. But Chris Christie being Chris Christie, bullied forward. And Kaci Hickox called him out. As Hickox's boyfriend said, "he messed with the wrong redhead". She contacted Norm Siegel, one of the better civil rights lawyers in the country and said she was going to sue. And, in the true way of all bullies, Christie caved while maintaining that he hadn't. Hickox then returned home to rural Maine, where she was met with more bullying by the equally blustering governor of that state, Paul LePage, who has threatened her with men with guns if she doesn't kowtow. But she hasn't, and I suspect she won't.

Now, I fully expect the Chris Christies and Paul LePages of the world to try and score cheap political points by being posturing blowhards at every opportunity. What I didn't expect was the public response. What I didn't expect was the vitriol being spewed at Hickox. What I didn't expect was the immediate willingness of what seems to be the majority of the American public to  give in to unsubstantiated and groundless fear. But maybe I should have. In response to 9/11, we allowed the Patriot Act, and continue to allow its renewal. We allowed people to be locked up indefinitely, with no charges, no lawyer, and no hope of ever getting out. We tortured people. America seems to be afraid of everything and everyone anymore, and we don't care what we do as long as it makes that fear go away for a little bit. We let Chris Christies (and, yes, Andrew Cuomos, this is not intended to be a partisan rant) ignore the basic rights that, in fact, are what DOES make America exceptional. And we say and write hateful things about someone who should be a shining example of what America is supposed to be about.

Thursday, October 16, 2014

Slippery Slopes--Redux

Talk about instant gratification. I write one simple blog post and immediately 28 Harvard Law professors publish an Op-Ed in The Boston Globe saying "What that Trobich guy said? Ditto!" Well, maybe that's not exactly what they said, and I am quite sure not a one of them read my blog, but that's my story and I'm sticking to it. Regrettably, almost simultaneously, Ezra Klein of, a journalist whose work I generally think highly of, wrote a piece demonstrating that the concerns I (and the Harvard profs and others) am expressing are true.

The entire Op-Ed by the Harvard profs can be found here, but the bottom-line is that they are very concerned that these new policies overreach, and that the due process rights of the accused are getting trampled-upon in the process. Now, again, let's be precise here. The only entity that you have a "right" to due process from is the government. I have made the point in another post that most people mistakenly believe that Constitutional guarantees like free speech (and due process) means that you get that right anywhere and everywhere. You don't. Let's be clear, there is nothing "Unconstitutional" about these policies. But while an allegation of sexual assault to a university is not the same as being charged with that crime, the seriousness of the allegation (and the likely life-changing result of the allegation alone) warrants every bit the amount of due process that the Constitution guarantees you in a criminal court venue.

So far, so good, right? The various Harvard profs have awakened from their academic slumber and seen fit to take a stand. Yay. But almost at the same time, Klein was writing a piece that, I submit, should scare the crap out of you. Put simply, Klein acknowledges that the "Yes means Yes" law just enacted in California is "a terrible bill", but in his opinion "a necessary one". As I said in my earlier post, I am as staunch a defender of feminism as you will find. My two daughters are the pride and joy of my life, and if anyone ever hurt them in any way well, there's a reason why one of my daughters' friends said that when they saw "Taken" with Liam Neeson they thought of me (see below). When Klein speaks of "a culture of sexual entitlement" that is "built on [women's] fear", I agree with him completely. But this is not the remedy. Klein says, approvingly, that to work, "Yes means Yes" has to "create a world where men are afraid". And, most disturbingly, the cases where men are "convicted" from a truly ambiguous situation or, worse, completely concocted allegations, well, according to Klein, "that's necessary for the law's success". He's willing for some (in his assertion "very, very few") to be ruined for the greater good.

No. That can't be. If that's the solution, then we need to keep the disease. Surely there is a better way to tear down the very real issues of sexual entitlement/harassment/assault. There has to be.

[If you somehow don't know the movie "Taken" with Liam Neeson (heck, they're about to come out with "Taken 3") here is the near-iconic scene of Neeson assuring those who have kidnapped his daughter of their fate]

Monday, October 13, 2014

The Slipperiest of Slopes

This is a hard one. Any one who knows me even a little knows I am an ardent backer of feminism. Few things provoke a more visceral hatred in me than men mistreating women. I abhor "guys being guys" and talking about women as if they are simply a sum of their physical attributes, making sexist and derogatory remarks when faced with women who are smart, strong, and accomplished. I tried to raise my daughters to be such smart, strong, and accomplished women (in part, by marrying one) and trying to teach them that they take a back seat to no one. They were never to worry about being too smart in school or too tough on the athletic field. They could wear what they wanted and say what they wanted, and any male who had a problem with any of that wasn't much of a man and was certainly not worth their time. And, most importantly, no male (I purposely do not use the word "man" here) had any right to put their hand on them if they did want him to, and that if he persisted, to use whatever force or tactic they saw fit to stop it. So, when discussions turn to sexual harassment and assault, my first inclination is to assume some guy is being an ass (or worse). BUT..........

I am also a criminal defense lawyer. The concept of "innocent until proven guilty" is so ingrained in me as to be almost organic. There are few things worse than the prospect of an innocent person being punished for something they did not do. And, yes, false allegations of harassment, assault, and rape do occur. I've been a part of several cases where they were. BUT.....

In response (at least partially) to demands from feminists and their allies to do more about sexual assault, especially in the military and on college campuses, the noxious "Men's Rights" movement has gathered steam. Most of those who write on such topics are clearly misogynists, or simply those hoping to gain some extra print columns by making provocative but inane arguments (i.e. James Taranto of the Wall St. Journal). Many of the arguments fall back on the pseudo "guys being guys" type of argument and assert that it's essential for males to act like boors in order to be good soldiers, or not feel emasculated somehow. I chalk those up under the heading of "bullshit arguments by losers". BUT.....

There is a movement, which the Obama administration has supported, to attempt to assist alleged victims of sexual assault on campuses to seek redress. And here's where the slope has started to get pretty slippery. First, this movement purports to address the assertion that 1 in 5 women will be sexually assaulted while in college. The problem is that the basis for that assertion is shaky. But even if the numbers are correct, the proposals are still pretty troubling. The most troubling for me is that it starts backwards--that is, it assumes that the allegations of assault are true, and shifts the burden of proof to the accused. Secondly, it is beginning to chip away at what constitutes "rape". When you are talking about prohibited conduct, definitions are important....real important. California recently passed an "affirmative consent" law, which means that in investigating sexual assault on campus, universities are supposed to determine if there was "an affirmative, conscious, and voluntary agreement to engage in sexual activity". How exactly does one prove or disprove such a standard? It is hard enough in "traditional" rape cases, where force and intimidation often don't leave any outward signs, yet the lack of such outward signs are brushed off as even beginning to constitute a defense. And, even if not a court of law, do you want someone to wear the stigma of being a "rapist" with such a vague standard?

As I said at the start, I hold few persons in more contempt than males who abuse women, in whatever form that abuse may take. But this new direction is fraught with peril. And I think it's a bad idea.

Monday, September 29, 2014

It's Not About You

A lesson that I learned long ago, but which is easily forgotten, was brought back to me the other day. A young man I represent is charged with several very serious crimes. If convicted at trial, he faces the likelihood of spending most, if not all, of the rest of his life in prison. He just turned 19. The State has what appears to be substantial evidence. Last week, at the last moment, he balked at accepting a plea offer. It was not a remarkably generous plea offer, but it would have resulted in him getting out of prison while still being a few years younger than I am as I write this (and, contrary, to my son's opinion, I ain't old). The offer is now off the table. We go to trial next week.

My immediate reaction was a mixture of frustration and anger. Couldn't he see the choice he was making? Couldn't he see the logical, rational decision was to take the plea that I had fought long and hard to get? What am I going to do now? I'm going to get killed at trial. Several people came up to me afterward, all murmuring consoling phrases. After a bit, though, I stopped and thought about it. What the hell was I frustrated and angry about? This is not about me. It's about my client. He's made a choice. Whether I agree with it or not is no longer the point. He made it. And my job is to fight for him as hard as I possibly can. So there's no time to wallow about, criticizing my client's choices, bemoaning the task I have facing me. It's certainly  not the time to go through the motions, put in a perfunctory performance, knowing the realities of what may likely happen. If you do that, everyone will pat you on the back and say, "hey, you had nothing to work with".  Pardon the language: Bullshit. What it is time for is to focus on the fact that a young man has only me between him and perhaps a lifetime in prison. It's about him at this point, and it's my job to do everything I possibly can to help him.

So let's go. We're coming out, guns blazing. Every issue is going to be a fight, no matter what. No concessions, no quarter sought or given. Because I'm all he's got left.

Tuesday, September 23, 2014

Hope Solo, Ray Rice, Adrian Peterson: Same Thing, Only Different

By now I am sure you have heard (and seen) quite a bit about both the Ray Rice and Adrian Peterson situations. Roger Goodell, The NFL, and the Baltimore Ravens have all performed like craven and inept buffoons in the Rice matter. The Minnesota Vikings' vacillations on Peterson would be comical if the topic were not so serious. But this is not a post about them. Nor is it about the ways a large part of our culture is premised on misogyny (another day, perhaps). Nor is it a discussion of the nature and scope of parental discipline (although, as a caveat, I will note that the protestations of those such as Sean Hannity, Charles Barkley, and others that "my mother/father beat me and I turned out fine" suffers not only from defects of logic, but from faulty premises).

No, this is about those situations in the NFL and the comparisons some are making to the situation of Hope Solo, the goalkeeper for the Seattle Reign of the NWSL and, more importantly, for the U.S. Women's National Team, which is in the midst of preparations for the Women's World Cup next year. To say that Solo, who many (myself included) consider the greatest women's keeper of all time, is important to the U.S. team's chances is an understatement

But, there is a complication. Solo is a mercurial and volatile talent who, frankly, does not care one whit what others think of her, including her team. It is my opinion that this trait is part of what makes her great. She plays with an arrogance and swagger that intimidates opponents and seems to make her immune to big game pressure. But it often leads her to trouble off the field. There were allegations of domestic violence by her against her then-fiancee, now-husband, ex-NFL player Jerramy Stephens (who has his own demons). Nothing came of that incident and Solo did not pursue it. But earlier this year, Solo was charged with assaulting her half-sister and 17 year-old nephew at a birthday party at her house. There was alcohol involved (shocking, I know) and by all accounts it was quite a scene. Solo has plead not guilty and is awaiting trial. U.S. Soccer has allowed her to keep training and playing with the team while the legal situation plays out.

You are now hearing calls for Solo to be taken off the team and/or not be permitted to play, a la Rice and Peterson. There are cries of a "double standard". I even saw one particularly unhinged commenter state that the fact that Solo was being permitted to play and Rice and Peterson were not was evidence of a "leftist, feminist attack on the NFL".(Because nothing says free-market masculinity like beating women and children, am I right? But I digress.) But are the situations comparable? I would argue not. Not unless your position is that any athlete charged with any crime must sit until their legal situation is resolved. Yes, the alleged victims are family members of Solo's, so technically this falls under the heading of "domestic violence". I even heard one commentator, who I generally like, refer to it as "child abuse", since the nephew is 17. But this is not domestic violence, and it is not child abuse. The sister and nephew do not live with Solo. They are not financially dependent on her, and there are obviously not issues of emotional/romantic/sexual dependency.

Domestic violence and child abuse are real, they are far more prevalent than the public realizes, they are often covered-up, minimized, and rationalized, and they are a significant precursor to a startling percentage of the homicides and sexual assaults in the U.S. But it is the unique and intimate nature of those relationships that makes them so fraught with peril. Solo's situation is not the same. To call her situation "domestic violence" and "child abuse" is to cheapen those terms. Again, if your position is that any athlete facing any criminal charge should not be permitted to play, well, that's another discussion for another day. But don't try to sell the false equivalency of Hope Solo, Ray Rice, and Adrian Peterson

Monday, September 22, 2014

As Long As I Got My Suit and Tie.....

No, this is not a blog about the Justin Timberlake song ,as much as I think it's great (well, I could do without Jay-Z's part, but I quibble). It's about dressing--more specifically, dressing appropriately. If you know me, or have ready any of this blog, you know that I'm a criminal defense trial lawyer. So, a suit and tie is my normal dress. In a world of "business casual", criminal law is about the last bastion of "business formal". I prefer what I refer to as an "East Coast Big City" style--dark suit (sometimes pinstripe), nice dress shirt (color is not a bad thing, sometimes French cuffs, but never button-down with a suit), tie with some color and/or pattern (not regimental stripe, and silk not wool), silk pocket square (coordinates with, but does not "match" the tie), wingtips. When I first moved to the South, I saw lots of seersucker--sorry, not me. Also saw lots of blazers and khakis. For court? Nope. Again, not me.

But this is not really a fashion post either. What you wear and how you look MATTERS. Sorry, it does. Always has. Probably always will. When I walk into a courtroom, I am sending a message. To the judge, to the prosecutor, to the other lawyers in the room, and most importantly, to my client and the jury. I am here, I am ready, I am the big league. This is business. I am here to win and if you think you can beat me, think again. Should it matter? In a perfect world, perhaps not. Your intellect and brilliance should shine through. But, in case you hadn't noticed, the world is not perfect. And if you don't send the message with your appearance, many will never give your intellect and brilliance the chance to shine. Now don't get me wrong. You can look impeccable, and if you are unprepared the perfect knot in your tie won't help. But it is the setting on the table.

Now, this brings me to an interesting juncture. I am pretty far left politically. Not what you would think about a guy who just spent two paragraphs telling you about suits and ties and how important they are. Although (actually, I would contend because) I am quite far left, I am not a huge fan of President Obama. But I find a lot of the criticism of him by the far right fairly juvenile. There is one area where he has been criticized recently that I think does have some merit, and it is precisely this topic. When the situation between Russia and Ukraine was beginning to heat up earlier this year, there was a photo that the White House put out of the President speaking to Vladimir Putin from the Oval Office on a Saturday. It was characterized as a very serious call, and the President was warning of sanctions. He was wearing jeans and a button-down shirt with no tie. He appears at a lot of speeches and press conferences with no tie (now, I am not knocking the tan suit. It may not have been my style, but I thought it was fine). Sorry, that's a mistake. If you don't think those "optics" (the current word for it) matter, you're kidding yourself. As I said before, the message is "I am here, I am ready, I am the big league. This is business. I am here to win and if you think you can beat me, think again".

And on top of conveying a sense of seriousness and purpose, dressing nice has other benefits. Just ask ZZ Top:

Saturday, June 21, 2014

Inigo Montoya and The U.S. Constitution

If you have not seen the movie "The Princess Bride", stop reading this right now, go to Redbox, Netflix, or whatever, and watch it first, and then come back. Go ahead, we'll wait................OK, how'd you like it? Fun flick, isn't it? As with lots of fans of the movie, my favorite character is Inigo Montoya, who has some of the best movie lines ever in the film. But the title of this blog post refers to one in particular: "You keep using that word. I do not think it means what you think it means". When I hear many, many people hold forth on "The Constitution", that line always pops to mind. Everyone, everywhere it seems, blathers on about what the U.S. Constitution (more particularly, the amendments contained in the Bill of Rights) does or doesn't provide for. And, in a large number of cases, they are completely and utterly wrong. Now, going through the whole issue would take a book, obviously, or several books (and therein lies a big part of the problem--to understand Constitutional law takes reading lots of books and stuff) so I am just going to hit the high spots, i.e. the real popular ones that get shouted about a lot, almost always incorrectly. Let's begin at the beginning:

1. Free Speech. This one seems to come up when someone says something hateful or stupid (to some folks) and faces a consequence for it. Those who like what that person said often run about bemoaning that the person saying hateful or stupid (to some people) things has been deprived of "free speech". Not only is that completely wrong, but it is compounded by the fact that what the bemoaners are running about bemoaning  is ALSO the exercise of First Amendment rights. Let's take the "Duck Dynasty" contretemps. Phil Robertson said something hateful and stupid (to some people). He was exercising his right to free speech. No government, whether federal, state, or local, tried to stop him from saying it, nor did any government punish him for saying it. That's really the end of the story as it regards the First Amendment. As long as the government does not try to stop you from saying something or punish you for saying it, you have enjoyed your entire rights to free speech. BUT, other folks are also free to complain that what was said was hateful or stupid (to some people), employers (absent some contract provision or, heaven forbid, union agreement) can fire/suspend/whatever someone for such speech, AND, by exercising the right to free assembly, folks can organize boycotts or public protests of the hateful and stupid (to some people) speech. So, when "Duck Dynasty" was temporarily suspended by the A&E Network, when Mr. Robertson was loudly criticized, when boycotts of the show were urged, that was not some nefarious infringement of Mr. Robertson's Constitutional rights carried out by the purveyors of "political correctness" (which I've come to understand is code for "my right to say hateful or stupid {to some people}things") but simply a vigorous exercise of First Amendment rights. So, in summary, say all the hateful or stupid (to some people) things you want--just be prepared for others to exercise their right to free speech in response.

2. Guns. Oh boy. No, I don't have enough time or space to deal with all (or even many) of the issues. My opinion is that a significant minority of Americans have become completely unhinged about guns and their fantasy that they are some type of cross between Jason Bourne/Dirty Harry/Nathan Hale and whomever else is a real danger. But let me just leave it at this. The notion that an individual had the right to keep and bear arms, at all, was not a settled issue until the 2008 Supreme Court decision of District of Columbia v. Heller, 554 U.S. 570 (2008) (text of opinion) and that was a bare 5-4 majority. BUT, I repeat, BUT,even the conservative majority in Heller, led by the author of the opinion, Antonin Scalia, recognized that this right was clearly subject to regulation: "Like most rights, the Second Amendment right is not unlimited. It is not a right to keep and carry any weapon whatsoever, in any manner whatsoever, and for whatever purpose". So, when someone proposes gun regulation (NOT gun prohibition) stop running about shrieking about the deprivation of your Second Amendment rights, because they are not being infringed. Don't take my word for it, take Justice Scalia's.

4. Yes, I skipped 3, because I'm not going to talk about the Third Amendment right now, although there are some fascinating potential Third Amendment issues surrounding the militarization of police forces. But that's for another post. My last point for THIS post is the "technicalities" amendment. I always hear people say that a person charged with a crime was acquitted "on a technicality". In fact, I heard a potential juror say it in a trial I had recently. That term has always enraged me, so, me being me, I decided to confront this juror as to what he meant by a "technicality". Seems what he meant, and what most people who use that term mean, is that evidence did not come into a trial because it was deemed by the court to be inadmissible. The most common reason evidence is inadmissible is that it was obtained in violation of either the Fourth (search and seizure/due process) or the Sixth (confrontation) Amendments. Why is the protection of someone's Constitutional rights considered a "technicality"? Because they are charged with a crime? Because law enforcement is always a force for good? I'm not going to go into the specifics of the rationale behind Fourth and Sixth (and, actually Fifth and Fourteenth as well) Amendment law, but suffice it to say that if you fear real and not imagined government intrusion into your everyday life, you should not consider the suppression of evidence as a "technicality" to "get criminals off". And, yes, that goes for the people who are "really guilty" too.

So, this has been fun, and there's lots more to get to but that's enough for one sitting. Bottom line: chances are that most of the people you hear or read blathering about "The Constitution" or waiving their pocket copy of it around, don't have the slightest clue what it really says or really means. Don't fall for it. And next time you are inclined to think something is or isn't Constitutional, stop and do a little research first.

Saturday, May 31, 2014

Black and White-A Tale of Two Clients

There are large segments of America (mostly white America, but not exclusively) that want to convince themselves that we now live in a "post-racial" country. A majority of the Supreme Court wants to believe that. If you are upper-middle-class or above (I don't think an actual middle-class exists much these days) it is easy to convince yourself of it. Overt racism does not smack you in the face. We have a (half) black President. What's the problem? Well, let me tell you about two recent cases of mine that, I hope, will demonstrate to you that "white privilege" is not a fabrication. It is very, very real and clouds what happens in my world, the criminal justice system, on a daily basis.

The first case involves a young black kid. He's 18, about 5'2" and maybe weighs 120 lbs. When I first met him and his family, he was charged with breaking and entering and larceny after breaking and entering, both of which are felonies in North Carolina. What I immediately noticed about my client was that he was extremely quiet, pleasant, but answered all my questions with a smile and "yes". I've been doing this awhile--I knew something wasn't right. I turned to his mother and asked if my client was in school and she told me that he was, but that he hadn't graduated and had a cognitive impairment. Bingo. As my investigation of the case would reveal, my client had made it to about 10th grade, but had reading skills of a 4th or 5th grader. His grades were mediocre to poor and there were complaints that he was "inattentive" in class. His full-scale IQ was somewhere in the mid-to-high 70s--quite low but not "low enough". He had never been in any type of legal trouble before this case. The facts of the case, boiled down, are that my client was hanging out with some other guys and his co-defendant, all 6"2" and 230 lbs. of him, decided they were going to break into the neighbors' house and take the Playstation (or X-Box, or whatever it was). So big guy breaks the window and shoves my kid into the house, because he's the only one small enough. Oh, big guy and the two others beside my kid suffer from no cognitive impairments, by the way. They are caught about two hours later playing the Playstation at the big guy's house (a couple doors away). My kid doesn't ask for a lawyer, doesn't ask for his parents, and tells the cops everything.

Given my client's background, I entered into plea negotiations with the DA hoping for a result that will spare my kid at least a felony record, but perhaps any record at all. Perhaps a deferred prosecution of some type that will enable him to work for an eventual dismissal of charges. Surprisingly, I am told that the only offer that he will get is to plead as charged and to serve a split sentence of 30 days in jail and then 3 years of probation. I remind the DA that my kid has no record, is on the cusp of mental retardation, clearly was not a leader in this incident, and immediately and fully cooperated with the police. No dice. Felony and jail or nothing. So, I went to my client and his family and told them the options. I also told them that I wanted them to consider entrusting me to take a risk on their behalf. Turn down the deal and plead "straight up", with no agreement as to sentence. I told them I thought I could convince a judge to do at least as good as the DA offered and, perhaps, much better. Of course, it was a gamble. The judge could elect to do much worse and put my kid in jail for several months. But my client's mother and father (she drives a school bus, he was a laborer) trusted in me and wanted to try and get the best result for their son that they could. So, that's what we did. And it worked! The judge listened to my pitch and decided to impose what is known in North Carolina as a "prayer for judgment continued" or PJC. What that is, basically, is that the judge finds the client guilty but does not impose sentence. He, therefore, does not officially have a conviction. There are normally strings attached to PJCs and the judge wanted my client to continue to work towards a high-school diploma, do some community service, and, of course, stay out of trouble. As I've said, I've been doing this a long time and don't get too high or low about cases, but this one really made me happy. For a while. We'll come back to that.

My other client is the son of an old friend of mine. At the time he got in trouble with the law, he was 17, white, nice-looking kid, who went to one of the nicest public high-schools in Charlotte. But he had developed a nasty drug habit. When I started representing him he had caught a bunch of charges, including obtaining property by false pretenses, larceny, credit-card fraud, and carrying a concealed weapon (a knife). There was also rather horrible side stories of his having been taken advantage of by adult predators who helped supply his habit in exchange for other things. The larceny and credit card offenses grew out of that side story and the alleged "victim" of those crimes was the vermin of which I speak. When I approached the DA about that set of charges, unlike client #1, they were willing to help. They reduced the charges to misdemeanors and took no position when I plead my client guilty and asked the judge in that case for a PJC (when the DA "takes no position", the judge knows they are consenting, albeit silently). Granted. Yay! But there were other charges of unlawful concealment and the aforesaid weapons charge that, while growing out of his drug dependency, were not tied to the other problems. So, I tried to buy time and we plead to those charges and appealed them to Superior Court for a jury trial--without going into detail, this was a way to buy us about 2+ years of time before we'd have to try those cases. In the interim, I was hoping my client could get his life straightened out. And he did. To his great credit, he and his Dad moved to another state, he got into rehab, has been over 2 years sober, and has worked steadily and impressively for an employer who loves him. I took that information back to the DA with the pitch that, "Look, the kid has turned his life around, let's not screw up what the judge was trying to do with the prior PJC". And, again, they were willing to help. Cases dismissed. Yay! And for this client, happy ending to the story.

Not so much for client #1. Because when he was charged with the felonies I talked about before, he was kicked out the high school he was attending and had to go to "training school" (another story for another day). Well, in the interim, he had gone back to his old high school one afternoon, not causing any trouble just hanging out with some friends, and the cop at the school (knows euphemistically as the "School Resource Officer") saw him and charged him with 2nd Degree Trespassing, a relatively minor misdemeanor but, again, would leave him with a criminal record. I am convinced that my client did not know enough to know that going back to his old school was a crime. But, I thought, surely the DA will see the same logic as with client #2. I talked to the school officer, imploring him to relate to the DA the "no harm, no foul" nature of my client just standing around with a couple other kids. Not so much. OK, then surely this judge will see what the first judge did for my client and, given the circumstances, will impose another PJC (rare, but it can happen). Just stand silent, I asked the DA and the officer. Nope. Guilty, no PJC, criminal record. I was mad. Really mad. I went into the hall with my client and his father (his mother could not be there that day because, ironically, she had to work driving a school bus) and I told his father that this would not have happened to his son if he had been white and from a nice neighborhood. And the damnedest thing happened. He just gave me a half-smile, said "I appreciate you doing everything you could for my son", shook my hand, and headed with his son to probation. He wasn't shocked, wasn't outraged. He knew what had just happened and HE EXPECTED IT. That made me about as sad as I've been doing this job.

This is just one example. Stuff like this happens every day, from the granting of favorable bond terms, to disparate plea offers, to sentencing. White privilege is alive and well. You can deny it if you want....doesn't mean it's not real.

Wednesday, April 30, 2014

Oklahoma Horror Show

What happened in Oklahoma last night was sickening and repulsive. They basically tortured him to death. Is America OK with that? Is America OK with the statistical probability that 4% of people executed are likely innocent? Is America OK with the fact that only China, Iran, Iraq, and Saudi Arabia execute more people than we do? Is America OK with the fact that whether someone gets executed in this country is the result of a macabre lottery and that the blacker you are and the poorer you are the more likely it is that your number will come up? It seems we are.

Don't talk to me about "American exceptionalism" anymore. Don't talk to me about what barbarians those "other" people in the world are, and how their religion (or lack thereof) makes them violent savages. A man was tortured to death last night in America under the guise of "justice". Shame on us.

Tuesday, April 29, 2014

Brain download

There are a lot of topics running through my head right now, and I haven't had the opportunity to flesh them out into anything long-form, so this is a sort of download of thoughts and issues:

1. As I posted on Facebook the other day, it is a shame that the uproar about Donald Sterling completely overshadowed the passing of Dr. Jack Ramsay. His loss is felt by all basketball fans, but I think most acutely by those of us who were born and raised in Philly and grew up on Big Five basketball. Dr. Jack simply WAS St. Joe's basketball. And whether you cheered for the Hawks, or were a fan of Penn, LaSalle, Villanova, or Temple, you knew he was simply the best. It was so hard watching the NBA finals back in 1977, because as desperately as I wanted the 76ers and Julius Erving to win the title, Dr. Jack's Trail Blazers played basketball the way I learned how to play. They moved without the ball, ran when they had the opportunity but didn't force it, played tough, helping team defense, everything about playing the game as it should be played. I hated them, but loved watching them. In a world of too many Dick Vitales sucking up all the oxygen in the room during a college game, it was always refreshing watching a game that Dr. Jack worked. And on top of everything else, he was an underwater demolitions frogman in the Navy--the precursors to the SEALs. A full life indeed.

2. On the Sterling front, what I have found most fascinating is the almost perverse need of some pundits to deny that Sterling is a racist. They want to point out that his mistress is Black and Mexican. So? Thomas Jefferson slept with Sally Hemings but kept slaves. They point out he employs black men and pays them significant sums of money. Yes, which causes his investment in the team go up even more significantly. The fact that he employs them does not preclude his thinking them to be inferior. Thoroughbred horse owners spend great amounts on their horses, too. They claim his mistress is a gold digger and a terrible person. Stipulated. Which makes him less of a racist, how, exactly? He has receive awards from the L.A. chapter of the NAACP and has given money to Democrats? Again, so? Money makes people look the other way to a lot of sins. The fact that he is racist should embarrass the NAACP-LA. But it doesn't make him less of a racist. Race and issues of race are part of our everyday lives. If you contend that institutional racism no longer exists, I would suggest you are not looking very hard. I hear white folks complain all the time that they are "tired" of hearing about racism. That's nice. I work with people everyday who are tired of having to deal with it. But they don't have any choice.

3. The Supreme Court is considering two cases today on the extent to which cell phones are searchable when people are arrested. This is a big deal. As I'm sure all of you are aware, cell phones are not just phones anymore. They contain significant information about people's lives, not just at that moment, but for months or years in the past and in the future. These decisions will be extremely important. Oh, and those car insurance ads where the cute farm animal shows the officer his proof of insurance by handing him the cell phone? Don't do that.

4. This morning comes news of another mass shooting, this time in Kennesaw, GA. Which is fascinating, because I hear all the time about how "gun-free" zones are making people less safe, and if only everyone was packing (you know, "good guys with guns") we'd all be safer. Well, two points. I deal with murder and mayhem daily. In 20 years, there has never been a hint that someone chose where to do their crime based on the existence of a "gun-free zone", or even considered the issue of whether guns were around where the hell was breaking loose. If you honestly believe that people choose the location of criminal behavior based upon a calculus of where they may encounter armed resistance, you have been watching too many bad action movies and listening far too much to Wayne LaPierre. Further, Kennesaw, GA has had a law on the book since 1982 mandating gun ownership by the heads of households. So there's no shortage of guns there, presumably in the hands of "good guys". And yet............

Saturday, March 29, 2014

Hobby Lobby, or Can I have my cake and eat it too?

This past week two cases were argued before the U.S. Supreme Court arising out of the mandate under the Affordable Care Act that requires that employer-provided health insurance cover contraception. The more widely-known and reported case is that involving Hobby Lobby, the chain of arts-and-crafts stores. It seems that Hobby Lobby is owned by the Green family, who are apparently ardent evangelical Christians. They claim to object to several forms of contraception which they contend are abortifacients (i.e. that the form of contraception is not a prophylactic but actually induces an abortion). For the moment, let's put aside the rather dubious science behind such claims and take it at it's face value. Hobby Lobby and its supporters have characterized their position as one about "religious liberty" and that requiring them to provide health insurance which covers, in their view, abortion, violates their religious beliefs. Ah, but whose beliefs are we talking about? Therein lies the rub, and why this case is not really about religious liberty but rather about wanting the tyrannical State to protect you when it suits you and let you do whatever you damn well please when it doesn't.

Hobby Lobby is a corporation. What is a corporation? Well, a corporation is a legal entity recognized by law. Why do people form corporations? Well, a really big reason is to insulate themselves from individual liability for the debts of the corporation. If you are a vendor of Hobby Lobby and they don't pay you for your materials, you can sue Hobby Lobby but you can't sue the Green family. If your neighborhood Hobby Lobby leaves a mess on the floor and you slip and fall and break your leg, again, you can sue Hobby Lobby, but not the Green family. Now, there is a way you actually could sue the Green family in those instances, and that is if the Green family ran their corporation as an extension of themselves personally--the classic way that happens is by commingling corporate and individual funds. In that case, you might be permitted to "pierce the corporate veil" as lawyers and judges like to say, and get to the individuals. The underlying premise is that if the individuals have disregarded the corporate entity and simply carried on their business as if it were their individual affairs, then they should be individually liable. I'm making an assumption here, but my guess is that the Greens have run their corporation properly and that, if you slip and fall in a Hobby Lobby next week and try to sue the Greens individually, their lawyers would very, very quickly file a motion to dismiss that lawsuit, which motion would be very, very quickly granted. They might even file what is known as a Rule 11 motion for a frivolous action and have you and/or your lawyers sanctioned for even bringing such a lawsuit.

So, from a legal standpoint, when you are dealing with Hobby Lobby, you are dealing with the corporation, not the people who own it. But the Greens seem to want that State-created protection when they may be on the hook for debts and lawsuits, but also want the State to give them a pass on the contraceptive mandate because it offends their individual religious beliefs. But, but, the mandate does not apply to the Greens individually, it applies to Hobby Lobby. Hm, problematic. it would seem. No, not if you can disguise what you are trying to accomplish with nice buzzwords like "religious liberty". Let's be clear, the ACA does not require the Green family to pay for ANYTHING. It requires the corporation they own to do so. It's not a church, it's a corporation. It is a creature of the State. If they want to run the corporation according to "Christian values", bully for them. But that does not change the fact that Hobby Lobby is a corporation and not the alter ego of the Green family. This ain't about religion folks, as usual it's about money.

Sunday, February 23, 2014

Darkness on the Edge of Town

I'm about to start a trial. As those folks who are friends of mine on Facebook know, I often play music by The Clash when I'm about to start, or am in, a trial.

There is a place you have to go when there is as much on the line as there is in a serious felony criminal trial. It can be a dark and lonely place. No matter the support from family, friends, or anyone else, you're out there on the ledge by yourself. A lot of times even your client is adversarial. No one in that courtroom wants you to win. So you adjust your mindset. For me, it entails channeling anger and arrogance--convincing myself that I am the best at what I do, that the prosecution is foolish to try and match me. Some trial lawyers I know have an almost Zen approach. They are able to achieve calm amidst the storm. That doesn't work for me.

But there's a price that comes with that mindset, especially for those close to me. I'm by nature arrogant and self-assured--have been since I was a kid. I'm not good at being warm and understanding. That's hard enough for the people who care about me during the lulls. When I'm in trial, those characteristics take over almost entirely, and I am no fun to be around. At some level, I know that. But I am powerless to stop it. No, that's bullshit. Of course I could stop it. I choose not to, and simply hope that those I love will understand. It's a lot to ask. And there's an internal toll to be paid too. You go into the dark too often, sometimes it's hard to come back. As I get older, it gets tougher to recover. It's why I've taken to working out harder in the last year or two than I have since my early twenties. There's a saying among those of us who do murder and mayhem cases that every lawyer has a number stamped in their brain. That number is the number of trials you have in you. No one knows in advance what that number is. But when you reach that number, it's time to get out. The trick is recognizing when that number hits.

But enough of the "woe is me". As I've said before, I do this because, at heart, I love it. I chose it, and I wouldn't do anything else. Time to strap on the guns and see what happens. As the Boss says:

"Tonight I'll be on that hill 'cause I can't stop
I'll be on that hill with everything I got
Lives on the line where dreams are found and lost
I'll be there on time and I'll pay the cost
For wanting things that can only be found
In the darkness on the edge of town"

Saturday, February 22, 2014

Can't Anybody Here Play This Game?

First, the title (for you non-baseball fans). The expansion 1962 New York Mets were perhaps the worst baseball team of all time. They were managed by baseball legend Casey Stengel. Stengel, upon witnessing his team's sheer ineptitude, was said to have exclaimed "Can't anybody here play this game?". As it turns out, Casey never said it. When Jimmy Breslin was writing about the team, he made up the "quote" and attributed it to the manager. But the cry of "Can't anybody here play this game?" still sounds when witnessing a team playing poorly.

I chose this title because this post is about how badly people argue. Now, big surprise to those who know me, I LOVE to argue. Hell, I like it so much I do it for a living. But the basics of arguing (or debate, if there's too much hostile connotation to the word "argue" for you--more on that in a minute) are not that complicated: take a position, support it with evidence, listen to the counter-argument, respond. Lather, rinse, repeat. The problem is that the vast majority of people skip the middle parts: they lack evidence and they don't listen to the counter. When you note someone's lack of evidence, you often get the response "well, I'm entitled to my opinion". Yes indeed, you are. But if it lacks evidence or is poorly thought-out, others are entitled (I would contend required) to point out that such opinion is without merit. That is where listening to the response, considering it ("have I failed to support my position with evidence", "is my evidence from an authoritative and reliable source") and responding comes in. Simply expressing your opinion again, without dealing with the points raised by the other side, dissolves quickly and casts no light.

How do you know what you think and what you believe? Is it what you were taught as a child? Is it what you were taught in school? Whatever it is, if you don't test it, think ABOUT what you think and WHY you think it, I would suggest that you are not your own person. Public debate and discourse has devolved, for the  most part, into people shouting what I refer to as "articles of faith" at each other. These are positions that people hold, but when pressed for evidence as to why those positions are correct, i.e. when pushed to argue/debate those positions, are incapable of doing so. If you never change your opinion on something, if you are incapable of conceding that those whose position is different than yours sometimes have a point, if you are sure you have the answers, I would suggest you 're doing it wrong. This is not simply a matter of education. There are people out there who went to very fine schools who are absolutely terrible at this process. It is more a mindset of not being satisfied and being open to the process. I'm not always able to accomplish it. But I try.

Friday, January 17, 2014

About the title---and other stuff

People have asked me in the past about blogging (no, really, they have!). I've decided to give it a go, and if it only serves to give me a reason to think some things through for myself and no one else reads it, I believe it will still be worth it.

First things first, I would assume that if you are reading this you know who I am, but on the off-chance you've accidentally stumbled upon this, and the even more off-chance you care, I am a criminal defense lawyer based in Charlotte, NC. I specialize in serious felony and homicide defense. Yes, that means I work around murder and mayhem and those that are involved in it. I have handled numerous capital cases (i.e. where the State was looking to kill my client) and, thankfully, have never had a client sentenced to death. I work for the most part with indigent clients (i.e poor people) and am paid in a large number of the most serious cases by the State of North Carolina.

The title of this blog comes from a question that all criminal defense lawyers hear at some point in their lives, and to which I was subjected (along with several insults and ill-wishes upon me and my family) today on, of all places, Facebook. An individual convicted of a homicide in PA involving a toddler is apparently up for parole, and a person who was outraged by this characterized the individual's defense attorney as a "slimeball". I foolishly inquired as to why the attorney was a "slimeball", and was quickly informed that it was because he had done his job and represented his client as best he could. I then, even more foolishly, responded that this was also my line of work, and if that made me a "slimeball", oh well. It was then that a nice person whom I've never met asked me the question of my sleeping habits, suggested that perhaps bad things should happen to members of my family (boy, would that teach me) and informed me that I made them ill. They also informed me that my "fat wallet" was not worth being a "slimeball". The "fat wallet" comment was especially hilarious since, as I said, I represent mostly indigent clients and get paid an hourly rate lower than any plumber or other repairman who comes to your house.

So, how do I sleep at night? Usually just fine, thanks. I really and truly believe what we were taught about the Bill of Rights and know, that everyone is presumed innocent, that no one should go to jail unless the State can prove their guilt beyond a reasonable doubt, that everyone (yeah, everyone) is entitled to a lawyer (preferably one who knows what the hell they're doing) and a vigorous defense, and, ESPECIALLY, that if you make sure that the system gives the worst of the worst a fair trial then the system as a whole works better for everyone. I've met a lot of people along the way. Some who have done really terrible things. But I'll tell you a secret. I can count on one hand the number of folks I've represented who were just flat-out bad people. Most got to where they were through combinations of factors. Part of my job is to try and get judges and juries to see that. Sometimes I can. Often I can't.

That's how this little venture got its name. I'll post about stuff that comes up in my cases and other legal matters going on around the country. As a forewarning, I can get a little blunt and am not afraid to curse if the spirit moves me. If you want to comment, have at it....for those that know me, you already know I like to argue.