I’m torn. … I have a hard time thinking it’s OK to limit any evidence from being submitted that might prove guilt or innocence. Why would we do that? It drives me nuts that the appeals process is treated by some as a chess match instead of a search for truth. Once the jury speaks, that search ends and it’s all about tactical, constitutional arguments, it seems.

Still, I would hate to see people who are so clearly guilty use this as a ploy to sorta roll the dice. We saw on Dallas DNA, the show about exonerations in our county, that some people really do that. They waste the courts’ time just for kicks.

To save anyone else from the embarrassment of being the target of my keyboard, I write about myself this father’s day.  As an attorney, people come to me for advice and counsel.  My understanding of the law is held in reasonably high regard in some quarters.  Some people actually pay me for my thoughts (I know, but it’s true). 

So one might suspect that I am the object of respect and admiration, right?  Not in my house.

There is a firm, yet pervasive belief amongst my very own family, that I am incapable of doing anything, and I mean anything, without the oversight and direction of a family member.  It doesn’t matter how simple or pedestrian the task.  It doesn’t matter how many times I’ve done it (successfully) before.  If they don’t tell me how to do it, they fully expect my actions to result in disaster.  To avoid disaster, they watch me like a hawk to make sure I don’t screw everything up.

Someone harboring a sexist bias might think that this is a product of my darling wife’s need for control.  After all, Dr. Simple Justice has long been known around here as She Who Must Be Obeyed, or SWMBO for short.  But that would not be accurate, and she informs me that she is not a control freak, but rather just an ordinary gal who is charged with keeping me from blowing everything I do.  Since she has given herself two votes in the household legislature, I am unable to challenge her position in a fair and democratic vote.

But it’s not SWMBO who gets me, no matter how many times she leaves her car keys in the refrigerator then can’t find them.  After all, I’m not her father.  It’s my children, whose births were apparently destined to serve as reminder that no life comes without a price. 

My eldest child, a daughter of great beauty and talent, has the Jedi ability of mind control.  She need not speak to me, and in fact has rarely done so for the past few years.  She need only cock her eye and emit a sound similar to “tsk” to make clear that she disapproves.  It’s crushing in its simplicity and force.

My youngest, a son who exceeds my best qualities at every turn, never passes up an opportunity to point out my deficits.  Lately, he’s become a motor mouth.   I attribute this to my failure to beat him as an infant, but he was just so darned cute.  Nonetheless, he informs me on an hourly basis that I am not cool, just in case senility set in and I’ve forgotten his last admonition.

Some readers here write kind words about me, telling me that they find my writings interesting or thoughtful.  To anyone who thinks that these kinds words might serve to inflate my ego, make me thing that I’m a bigshot, take comfort.  No matter how many nice comments I receive for my writings, I have a wonderful family at home whose primary purpose is to keep me humble.  And they are particularly good at their job.  Really, really good,  

It would have been nice if somebody made me breakfast in bed, but I’m here writing and the rest of them are all fast asleep.  It’s the only time of day I can do stuff without supervision.

Happy father’s day. 

Age is a relative thing.  When I was 30, 50 seemed ancient.  Not anymore.  I have friends in their 60s, 70s, even 80s.  I have no friends in their 90s.  You have to draw the line somewhere, right?  Not according to the Chief Justice of the Illinois Supreme Court, who authored the opinion striking down the state’s mandatory retirement age of 75 for judges on the complaint of Cook County Circuit Judge William Maddux.

The decision, grounded on equal protection, is hardly what one would expect.  Justice Freeman did not conclude that the state law mandating retirement at age 75 was arbitrary and capricious, under the theory that there is nothing about the age of 75 that creates a presumption of unfitness for the position, lacking the stamina and vigor demanded of a judge. 

Rather, the decision picks apart the law which mandates “automatic retirement” of a judge at the end of the term in which a judge attains the age of 75, while permitting a person age 75 or older to run for election, de novo, as a judge.  This, Freeman concludes, makes no sense and violates equal protection.  As it happens, it also dodges the bigger question.

Clearly, judges can function beyond the age of 75 years.  Supreme Court Justice John Paul Stevens is now 89 and still puts up a decent fight.  But should they?  And what of those judge’s whose mental faculties diminish slowly, incrementally, without doing something so egregious as to compel their being thrown off the court?  Or the problem with judges losing touch, whether with evolving societal norms, or perhaps technology, or, worse still, reality?

On the one hand, political correctness demands that we pretend that age plays no role in how a person functions.  But as a guy getting older, and watching his friends and family get older,  For some, age tempers hard positions, allowing people to see the world in a more empathetic, less dogmatic way.  For others, age takes the bias of youth and personal experience and hardens it until the mind has closed completely to any new thought.  This changes from person to person, and there is neither a specific personality type nor age where things get ugly.  It also changes by subject matter, where people soften on some issues and harden on others, or demonstrate far more attention to things that interest them, yet appear to zone out when it comes to something that doesn’t.

Considering the job we expect of a judge, it’s hardly acceptable to allow our concern for political correctness to trump our demand for justice.  No judge has a right to remain on the bench after his ability to fulfill the demands of the job have diminished.  And truth be told, age plays a role for many who wear the robe, though not all and clearly not always in the same way.

So do we rid ourselves of the judge who has garnered and maintained respect and admiration for wisdom, propriety and justice, because she’s reached a ripe age?  Do we toss out the good with the bad?  And if so, where should the line be drawn?

And just to muddy up the waters a bit more, consider the implications for new blood in the system.  If we keep the old folks on the bench forever, it uses up the seats that would otherwise become available for new, younger judges.  This would have a deleterious affect on political parties, leaving no one to lick envelopes in the hope of getting the nod for the next judicial election.  And where would party leaders get their “walking around” money?

The mandatory retirement age for judges in New York is 70.  Ten years ago, that struck me as a bit young.  Today, it seems ridiculously young.  The state task force reached a similar conclusion in 1997, with nothing coming of it. 

Still, I would be afraid of the elimination of retirement age altogether, given that I’ve experienced some judges who haven’t aged well and, frankly, would be nearly impossible to get rid of despite having gone well beyond their shelf-life.  It’s extremely unlikely that they would leave on their own, particularly since part of the aging process is to seek continued usefulness in the face of declining faculties.  And few have the will to force a judge well past his prime to leave the bench, as a matter of courtesy if not fear. 

There is much to be said for vigor and open-mindedness.  There is much to be said for experience and maturity.  There is much to be said for putting an end to a reign of terror.  But I don’t know where to draw the line, and it’s become an increasingly difficult problem with each passing year.

With musical accompaniment.



H/T Lexmonitor (Kevin O’Keefe’s love child)

A new campaign reminds subway and bus riders to give up reserved seats to the elderly or disabled.

Those who refuse could be fined $25 to $50 — or even face up to 10 days in jail.

Signs are going up this week in thousands of subway cars and buses. The law has long been on the books; transit officials are now trying to get people to obey it.

Over at Blue Must Be True, Karl Mansoor’s homage to honest cops, he posts a list created by a police instructor, Dave Smith (sounds liek alias to me) over at PoliceOne.  It’s one of those lists that tells us how the police view life from the inside of Fort Apache looking out.

1. Never run from me. My dog likes it, and I’ll just find you again… soon.
2. Never put your hands where I can’t see them… ever!
3. Never touch me, just pretend I am on fire because you will get burned.
4. Never fail to stop when I turn on my lights to pull you over; “World’s Greatest Chases” isn’t a reality show you want to get on.
5. Never argue with me. I am looking for facts not opinion… least of all yours.
6. Never lie to me, I am not one of your parents, and I probably already know more than you think.
7. Never get involved in a police action if you aren’t the complainant, a witness, or a suspect… it usually doesn’t go well.
8. Never tell me you have only had two beers, tell me the truth… we have tests.
9. Never threaten your kids with the police unless, of course, they need to be arrested!
10. Never tell me you didn’t know “that” was against the law; it doesn’t get you off and makes you look even dumber.

1. Never use more force than is absolutely necessary. Excessive force is Constitutionally unacceptable.
2. Never treat the public with disrespect. Always speak politely.
3. Never conceal the truth, even when, and especially if, the complete truth is detrimental to the police.

4. Never try to make up laws! You don’t get paid to make the laws, you get paid to enforce them.
5. Never get pissy when a citizen asserts his rights. If you want to enter my home or car, you’re going to need probable cause or a warrant, because you’re not getting my consent, (no matter home much you bitch, whine, or threaten). Not because I have anything to hide, but because I don’t want the police to forget we have a Constitution.
6. Never lie in your police report or jury testimony; you never know when there is going to be video to contradict you.
7. Never put your ego above your duty
8. Never use your office to settle personal scores
9. Never use your office to subvert the democratic process

1. Never forget that you are a public servant, not a public master.
2. Never forget that “servant” is as dignified an occupation as you make it.
3. Never forget that your credibility, and that of your fellow officers, is like a balloon — one little prick can damage it beyond repair.
4. Never forget that they guys who are telling you how special you are have their own agenda, and it’s not public service.
5. Never forget the Peelian Principles; they’re every bit as true now as they were then.
6. Never forget that the world is full of backstops, and some of those backstops have loved ones.
7. Never forget that you are a person, not “law enforcement.”
8. Never forget that the coverup gets you in more trouble than the mistake, as it should.

In the reviews of the factual backdrop to the Supreme Court’s Osborne decision, one factor seems to weigh heavily in some people’s mind against concern that the State of Alaska’s refusal to allow William Osborne, at his own expense, to conduct a DNA test to prove his innocence. 

Prior to trial, a tactical decision was made :

Mr. Osborne’s trial lawyer decided not to pursue a second kind of DNA testing that was more discriminating. The lawyer said she feared that the results might further incriminate her client. After his conviction, Mr. Osborne sued state officials in federal court seeking access to the DNA evidence for a third kind of yet-more-discriminating testing.

This bit of information takes the wind out of Osborne’s sails.  He had the chance. He rejected it for strategic reasons. Now he wants a second chance, his strategy having failed.  Claims of innocence aside, it smacks of disingenuity.  We’re all for fairness, but he had a fair chance and chose not to take it.  Screw him, right?

This is one of the most difficult constructs in criminal law: Tactical decisions are made by the attorney, often without the defendant’s approval and, even if with the defendant’s approval, based upon the relationship of trust and expectation of professional expertise that defendant’s have in their counsel.  In other words, the lawyer chose a course and it turned out wrong. 

The basis for the lawyer’s choice is subject to subsequent review on the issue of ineffective assistance of counsel.  In other words, if the decision was strategic, then counsel was not ineffective.  Counsel simply made a decision that didn’t pan out as well as hoped.  The defendant is saddled with this strategic choice because of the need for finality of convictions.  If we allow defendants to revisit every choice by his lawyer, then cases would go on indefinitely and nothing would ever be resolved.  Institutionally, this would mean that the system would grind to a halt as every defendant challenged every decision made in a failed defense.

There are reasons why strategic decisions are left to lawyers rather than require the approval of defendants.  At the top of the list is that defendants don’t ordinarily have a clue what will make for the best strategy, and commonly make incredibly foolish choices (which is often reflected in the conduct that got them in trouble in the first place).  Lower down on the list are influences that are less lofty, such as the lawyer just isn’t very good or knowledgeable or hard-working.  Lower still, perhaps the lawyer had dinner plans and didn’t feel like putting in the time to research, or simply think, about what he was doing.  Nonetheless, the choice is viewed on appeal as strategic if there is some way to characterize it as having some potential tactical purpose, even if not the choice that makes sense after the fact.

It’s far easier to figure out that a choice wasn’t great after trial.  Losing is a great indicator.  On the other hand, there’s no evidence that the alternative choice would have resulted in victory, something often assumed by clients who have been convicted.  Choices are sometimes limited to bad and worse, and the best decision is to pick the least harmful course when there isn’t a good course in sight.  No defendant likes to admit this after a loss.

In considering the choice made by Osborne’s trial counsel, knowing that DNA analysis at the time was somewhat spotty and, more significantly, knowing that an inconclusive DNA test was better for the defendant than a conclusive DNA test that would have nailed him to the wall, one can appreciate why his attorney made the decision she did.  It’s also quite possible that she didn’t believe her client’s protests of innocence.  Defendants sometimes lie to their lawyers.  Maybe Osborne had a bit of history of being less than truthful, and he suffered from the defendant who cried wolf syndrome. 

But there is a difference in this case that removes the pall cast over the case that comes from the sense that he had a chance to test his DNA and left it behind.  By seeking one final DNA test, at the defendant’s own expense and using a test that was better than what was available at the time of trial, it fell under the “no harm, no foul” rule.  It would cost the State of Alaska nothing to let Osborne have his test.  If it proved that he was not the rapist, a man would be proven innocent.  No state has an interest in preserving a conviction against an innocent man.  Either way, the state wins, and suffers nothing in the process.

As for Osborne, I have no idea whether he harbors any animosity at his trial counsel for making the decision that she did.  The available information suggests that Osborne wanted his lawyer to do the test, and the lawyer made the decision to take a pass.  It’s fair to say that Osborne should not be burdened with his lawyer’s decision when his choice was otherwise.  But that opens the door to gamesmanship, since the lawyer and defendant could split on every decision, just for fun, and later claim an opening to revisit each of counsel’s strategic decisions.  It also undermines the lawyers ability to defend, if she loses the authority to act in what she believes to be the defendant’s best interests.

Some here believe that proclamations of innocence trump all, and that defendants should be allowed to challenge and rechallenge every aspect of the defense, ad infinitum.  It’s not going to happen.  It can’t happen.  It shouldn’t happen.  In our zeal to protect personal freedom and constitutional rights, we sometimes forget that some defendants are people who have done some very bad, very harmful things.  There is a legitimate, indeed important, reason to the finality of convictions, aside from the systemic need not to tie up resources by revisiting old cases. 

But the exact same rationale that demands finality of the convictions of the factually guilty similarly demands the allowance of a test that will prove, with “unparalleled ability,” that a convicted defendant is innocent.  That’s where the Osborne decision went so horribly wrong.

Airing on HBO on June 29th at 9 p.m. is a documentary film by Liz Garbus, Shouting Fire: Stories from the Edge of Free Speech.  If the name Garbus sounds familiar, it should.  Liz is the daughter of Martin Garbus, first amendment lawyer for clients ranging from Lenny Bruce to Don Imus.  The heart of this film is an homage by daughter to father for his life’s work, a very endearing and poignant subtext to a fascinating study of the state of free speech in America.

The fear about documentaries is that they are leaden and heavy-handed in their desire to drive a point home.  This was of particular concern with Shouting Fire, given that the subject lends itself to being overwrought and hyperbolic.  But Liz Garbus’ handling was exceptionally gentle, never ramming the message down our throat, and instead showing sensitivity toward all sides of the argument rather than using her film to ridicule those for whom free speech was either an inconvenience or an infringement on political correctness. 

Juxtaposing some of the best known historic examples of the abridgment of free speech. such as McCarthyism, Skokie and the Pentagon Papers, with some current examples, like Ward Churchill, Debbie Almontaser and Chase Harper, a high schooler who wore a t-shirt with words “Homosexuality is Shameful.”  As one would expect, Garbus didn’t go for the low-handing fruit, but dealt with the problematic aspects of the first amendment head on.  Free speech is almost always protected in the ugly cases, the ones expressing ideas we would rather not hear.  And that, of couse, is the point of free speech.

The movie is largely fast pased, interrupted by soft-spoken commentary from Martin Garbus which makes one wonder how anyone could call him a bully, as well as Ken Starr and 7th Circuit Judge Richard Posner.  Garbus also included commentary by Donna Lieberman, executive director of the New York Civil Liberties Union, which added little and fed into the stereotype of wild Jewish liberal, and Floyd Abrams, who has certainly done his share of important First Amendment cases but comes off pedantic and devoid of charm.

For those who keep abreast of First Amendment cases, the descriptions tended to be a little too long and tedious, but not so much as to make you hope for a commercial.  Still, with the historic aspect of the documentary, it served to draw insightful parallels and remind us how our zeal for freedom ebbs and flows, and how the voices that one would expect to speak out in support of constitutional rights can be the same as those that seek to curtail it when transitory fears emerge.

A particularly compelling aspect of this documentary can be found in the final question posed to Martin Garbus, as to why today might be different than our past digressions into the curtailment of free speech.  Garbus notes that unlike before, we are now looking at a very young Supreme Court contingent, disinclined to be terribly concerned over the infringement of speech, giving us 25 to 30 years before there is even a chance that the Supreme Court will renew its interest in returning to a robust right to free speech.  He makes a great point, and to take it a step farther, there’s no guarantee that the next few justices will be cut from a different cloth than the current majority, such that his estimate might be a bit rosy.

For anyone who has a concern for the freedom of speech, and is mentally equipped to consider that it’s not just about the freedom to hear that which pleases you politically, this is a great documentary.  Whatever you do, don’t miss Posner’s mumbled line about the worthiness of what children have to say.  It’s a keeper. 

Fair weather friends of free speech are likely to find this film more troubling, as it clearly demonstrates that some of those politically inclined toward free speech are in fact some of speech’s worst enemies, reminiscent of the recent Cyber Civil Rights debate.  And for those younger folks of the libertarian bent, this documentary will serve as a great primer as to how we arrived at our current state, and will provide you with some historical perspective. 

Liz Garbus’ Shouting Fire: Stories from the Edge of Free Speech is a great documentary and a fascinating film. Not only will you learn something, but you’ll enjoy it in the process.  It will air on HBO on June 29th at 9 p.m.