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.

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.

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.

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............

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.

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"

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.