As President Obama’s health care plan is considered, one point of debate looms large. Should health care be rationed?
If you were a parent of a child whose life was about to end, you would desperately seek any measure, no matter how small the chance of such success or how expensive, to save her. I know I would. That’s what a parent should, must, do.
But that’s not how policy should work. It’s not the product of emotion and desperation, but one that can sustain the whole and provide for the welfare of a society of people rather than any particular individual within it. Science has sought to advance our ability to treat disease by developing heroic measures. This is good, and will no doubt inure to the benefit of society as a whole in the long run. It doesn’t mean, however, that we can ignore the allocation of scare resources, or that society can sustain a health care system that will provide every individual in need with any treatment possible at any time.
Here is a difficult concept to swallow. Everyone cannot be saved.
If we accept the proposition that there are not enough doctors, hospitals, medicine or cash to pay for them to allow every person in need access to every medical procedure available. we must accept the notion that care must ultimately be rationed. For every procedure that costs $100,000, how many poor pregnant women could be provided free, quality pre-natal care? Do we trade the health of those pregnant women for a chance that some ultra-expensive, low percentage procedure might save one child? What if the percentage of success was high, but the cost was $1 million?
As we sit today, the cost of health insurance is, frankly, outrageous. For those like me, who pay a multiple of our medical usage in insurance, financing the health of others who make greater use of resources, it’s already painful. I don’t take issue with the needs of other people per se, though I am troubled by those who undergo needless tests to keep a physician’s CAT scan operating 24/7 so that he can turn it into a profit center.
It’s similarly disturbing when some, like the elderly, use medical care as a social activity, enjoying inordinately expensive tests every time they get a twinge of pain, simply because medicare will cover it and they get to hang with the old homies while they wait for their turn. I’m not beating up on the elderly for fun, but in recognition that we’ve dedicated a great deal of resources toward the sentimental goal of extending life, with little thought of its quality or cost.
Our octogenerians view medicare as a right they’ve earned, but few would agree to pay for their care if they had ever been required to do so. It’s the disconnect between a fine sounding concept and a harsh reality. Would they really sacrifice their own grandchildren for an extra, needless, MRI? But they are never asked to think of it that way, as if the magic medical elves just produce medical procedures out of thin air rather than at the expense of their children and grandchildren. Some pays for it, folks. Just not you.
As much as I understand (and I most assuredly do) how a parent feels watching the pain suffered by their child, and can appreciate the desire to do anything, everything, possible, I similarly understand that our society would be required to dedicate an impossible amount of its resources to health care if we were to offer every conceivable treatment to anyone who needs it upon demand.
I don’t suggest that I know where the line should be drawn. But I do know that we can’t do it all, no matter how sad it is that someone may die even though there is a potential treatment available. I know that we trade off the extraordinary care for one for the ordinary care for many. I can feel the pain of a parent whose child’s life is on the line. I can also feel the pain of a parent who can’t afford basic health care for his child. And I understand that we cannot afford to do it all.
For anyone who thinks me callous, and it may be an accurate characterization, tell me how we pay for heroic health care when the cost will preclude the ability to buy food and clothing for a child equally beloved by a parent? It’s not that one child is less worthy than another, but that the cost of the extraordinary procedure has to come from somewhere. Who pays the price? What do we give up to make it happen? Something has to give.
I don’t see how we can do anything other than ration health care and survive. And I don’t like it any better than anyone else, but I realize that it must be. The real question is where to draw the line, but we’ll never get to that question until we, as a society, have come to grips with the fact that we can’t do it all.
Then again, we’re not very good about dealing with harsh realities. We would rather pretend they don’t exist while people suffer for lack of basic care, as long as we get whatever we need.
Monthly Archives: August 2009
Can You Hear Me Now?
Marketing philosopher Seth Godin has more in common with me than I thought. He hates cellphones too. Not because they are a blight on society, making access ubiquitous and (ugh) on demand, but because he can’t stand the fact that the sound quality sucks.
Am I the only person who wants a Hi Def telephone?
A headset that sounds better than the handheld receiver, and a handheld receiver that delivers the kind of quality calls we had back in the day…
I want to have a phone call where I don’t have to strain to hear the other person, apologize for static, call people back because they went through a dandelion storm…
No Seth, no. Me too!
While Seth explains it in marketing terms, that people are willing to give up convenience for quality, I suspect he has the same problem I do. I can’t hear as well as I used to. And no, Mom, it’s not because I was listening to Buddy Miles with the sound turned up to 11 on my Koss earphones when you told me it would make me deaf. At least I don’t think so.
Whatever the reason, my hearing isn’t what it used to be. My eyes aren’t either, but then whose are? As people adapt to the use of cellphones in lieu of real telephones, or “land lines” as they come to be called by those who sneer at anyone who doesn’t text, it’s time to come to grips with a cold, hard fact. Cellphones are not a sufficiently reliable means of communication.
You can debate how wonderful, how miraculous they are all you want. In fact, you may have plenty of time to ponder the question when no one shows up for your arraignment after you’ve left a message for your lawyer that you’ve been arrested via a cellphone. No amount of argument, no heartfelt rationale, is going to alter the fact that cellphones fade in and out, garble your words, leave the other party to hope that he’s heard what you’ve said, without any assurance that communication was well received.
Perhaps other ears, younger ears, are more attuned to the incomprehensible sounds emitted through the itty-bitty speaker. Perhaps missing the 38 ties “you know?” is spoken in the course of a sentence isn’t deemed particularly important. Or perhaps this is just a old folks problem, as the weight of time and human frailty takes its toll on our poor ears. But I just can’t stand the crackle and gaps that happen regularly on a cellphone.
Granted, I have some issues hearing when there’s no cellphone in sight, such as when Dr. SJ speaks to me from another room, facing in an opposite direction, mumbling under her breath, but I believe that she really doesn’t want me to hear what she has to say, though she will later insist she absolutely, positively did tell me that her parents were coming for a two month visit. I think that’s different.
So yes, Seth, I share your desire for a Hi Def telephone. I want to hear what people are saying to me without struggling, straining, asking them to repeat themselves, and repeat themselves again.
And if not a Hi Def telephone, I would settle for a nice old black bakelite one with a metal rotary dial. I was always able to hear what’s being said on an old rotary phone.
Plaxico Burress Tries The Option Play
The beauty of the option play is that if your first receiver is covered, you can always toss the ball to your secondary or tertiary receiver. You’ve got options. And so does Plaxico Burress, now that his attempt to pull down the long ball was blocked when the grand jury handed down an indictment for two counts of criminal possession of a weapon in the second degree and misdemeanor reckless endangerment.
It was worth a try, putting Plax in the grand jury and trying to distinguish between a gun in the hands of a pro football player and one in the hands of a person bent on committing a crime. It just didn’t work. That doesn’t mean that it was a mistake, or that bad strategy. He took a shot, and it was a good shot to take. Plax just didn’t get his arms around the ball. That happens.
From the New York Times :
Benjamin Brafman, Mr. Burress’s lawyer, accused Mr. Morgenthau’s office of a “lack of flexibility.” He had tried to negotiate a plea that would have required less prison time than the mandatory minimum sentence of three and a half years. He argued that Mr. Burress deserves leniency because he was not carrying the gun to commit a crime, was the only person injured, had bought the gun legally, and agreed to testify before the grand jury.
“For an isolated act of poor judgment in which nobody else was hurt, this man may be separated from his family for several years and will lose a brilliant career,” Mr. Brafman said in an interview before Monday’s grand jury decision was announced.
All true, and certainly persuasive to Giant’s fans, but remains problematic if one bears in mind that New York has laws prohibiting the possession of loaded guns, whether by tall receivers or even rap entrepreneurs. You see, New York City has a lot of celebrities around town, many of whom believe that they are at risk and could use some protection. But there is no exception in the law for guns in the hands of stars. Even star athletes are supposed to abide the laws.
But this was the option play, so the real question is where will it go next. This blends into an interesting question, given the concurring opinion by 10th Circuit Judge Tymkovich in US v. McCane , stating:
But this was the option play, so the real question is where will it go next. This blends into an interesting question, given the concurring opinion by 10th Circuit Judge Tymkovich in US v. McCane , stating:
My first point is that the felon dispossession dictum may lack the “longstanding” historical basis that Heller ascribes to it. Indeed, the scope of what Heller describes as “longstanding prohibitions on the possession of firearms by felons,” is far from clear. To be sure, some sources would support the proposition. But more recent authorities have not found evidence of longstanding dispossession laws. On the contrary, a number have specifically argued such laws did not exist and have questioned the sources relied upon by the earlier authorities. Instead, they assert, the weight of historical evidence suggests felon dispossession laws are creatures of the twentieth — rather than the eighteenth — century. Together these authorities cast doubt on a categorical approach to felon dispossession laws.
* * *
Rather than seriously wrestling with how to apply this new Second Amendment rule, therefore, courts will continue to simply reference the applicable Heller dictum and move on. And in light of the Supreme Court’s clear direction, this is perhaps how it should be. After all, “our job as a federal appellate court is to follow the Supreme Court’s directions, not pick and choose among them as if ordering from a menu.” I nevertheless wonder whether Second Amendment law would have been better served if the regulations Heller addressed in dicta had been left to later cases.
If I were in Brafman’s shoes, my next attack would be to challenge the underlying prohibition against carrying a handgun for self-defense under Heller. I’m betting that Ben and Mark Baker have already thought of this. Far stronger than the felon in possession argument, no one suggests that Burress had the gun to commit a crime, making this a great test case on the facts since this case presents the rarely seen “clean defendant” subjected to laws that were never quite meant to apply this way.
But it won’t be an easy road. It implicates many of the questions left unanswered in Heller’s individual rights interpretation of the Second Amendment, from whether it applies to the states via the 14th Amendment, to whether it applies outside the home, to whether crossing from New Jersey to Manhattan with loaded gun in pants alters the scenario.
Of course, as Doug Berman astutely notes, the next big question is whether it will be left to Brafman alone to fight the battle, or whether this will be the opportunity for so many Second Amendment fans to jump into the fray and block for Burress.
Even if the entire NRA lines up behind Burress, it’s going to be a tough sell to whichever New York County Supreme Court Justice will end up with the case, at present an unknown. There aren’t too many with both the ability and will to be the one to change everything when it comes to New York’s, and the nation’s, gun laws.
In the meantime, I emailed Chief Assistant Mark Dwyer after learning of the indictment yesterday, and asked whether they would keep the two year plea offer on the table. He replied:
But it won’t be an easy road. It implicates many of the questions left unanswered in Heller’s individual rights interpretation of the Second Amendment, from whether it applies to the states via the 14th Amendment, to whether it applies outside the home, to whether crossing from New Jersey to Manhattan with loaded gun in pants alters the scenario.
Of course, as Doug Berman astutely notes, the next big question is whether it will be left to Brafman alone to fight the battle, or whether this will be the opportunity for so many Second Amendment fans to jump into the fray and block for Burress.
I think anyone seriously and deeply committed to enforceable individual right to possess a gun for self-protection ought to be greatly troubled by both the decision to criminally prosecute Burress and by the considerable prison terms being threatened in this case. Though a few Second Amendment fans have previously express some concern for Plaxico’s plight, I will be interested to see if more start coming to his defense now that he has been formally indicted.Mind you, it would be inconceivable for the District Attorney to have not prosecuted Burress, there being both law that prohibits his conduct and thousands of others who have been and are still being prosecuted for the criminal possession of a weapon. But few present an opportunity like this, to take on the crime head first, with the right defendant and the best of circumstances. The only question now is whether the Second Amendment advocates will let the fact that Burress doesn’t play for Dallas cloud their thinking.
Even if the entire NRA lines up behind Burress, it’s going to be a tough sell to whichever New York County Supreme Court Justice will end up with the case, at present an unknown. There aren’t too many with both the ability and will to be the one to change everything when it comes to New York’s, and the nation’s, gun laws.
In the meantime, I emailed Chief Assistant Mark Dwyer after learning of the indictment yesterday, and asked whether they would keep the two year plea offer on the table. He replied:
We love to talk. We will talk if the defense wants to talk. We have taken nothing “legal” off the table. No one thinks this is a “max” situation.
The DA’s office walked a fine line on this case as well. They don’t want to “hurt” Plaxico Burress, who still has many fans out there who wonder how the Giants would have finished if he was still on the field. On the other hand, there is a very real message at stake in this case about the legitimacy of New York’s revamped, extra-harsh 2006 amendments to the gun laws. You can’t send the message that guns won’t be tolerated, and then cut too sweet a deal with a star wide-out.
On the other hand, Brafman won’t be much of a hero if he can’t pull out a better deal than the run-of-the-mill two years that anyone could have gotten Plax. The good news is that the DA didn’t pull the offer off the table when it was rejected the first time around. The good news is that it will still be there should every trick in Brafman’s bag fail, which is quite possible under the circumstances. The bad news is that Plax really needs a score and he’s got a long way to go to reach the end zone.
At least Plax still has options. No one wants to go for the short yardage outlet pass, but at least it’s still there.
Baptism By Taser
There are few things more American than celebrating a right of passage with a family party in the backyard. The sound of children laughing and playing in the backyard of a 55 year old church family counselor and bible study teacher whose grandchildren had just been baptized isn’t the sort of thing that should strike fear in the hearts of Manassas, Virginia police.
From Fox55 News :
From Fox55 News :
Edgar Rodriguez says the backyard celebration came to an abrupt halt. After some confusion, his 55-year-old father, Edgar Rodriguez, Sr. says he was asked for an ID and handed it over. Then, he was Tasered three times.
The elder Rodriguez explains how he pulls out his wallet. Interpreting for his father, Edgar says, “He took out his wallet. He had the license in his hand and gave his wallet to his wife. When he lifted up his hands with his license, he started feeling the electric shock in his back.”“All of a sudden he got Tasered in the back and then this side, and then officer in the front of him Tasered him from the front.
But the charge had yet to drain from the cops’ Taser, so
The pregnant mother of the baptized boys was Tasered, too. The family says the woman tried to help Rodriguez, who was on the ground. She was charged with assaulting a police officer.And since the tasing of pregnant women is generally frowned upon, the cops held her in jail overnight until immigration and customers enforcement could take her off their hands.
“They Tasered her in the back. She didn’t assault the officer. She was assaulted by officer,” said Edgar, Jr. who was just steps away from his father.
As it was a baptism party, this dangerous family had the video camera going, capturing the evil-doings of happy, raucous, tumultuous children at play.
The police claim that Rodriguez (note the ethnic name, which may or may not have played some role in the attitude of cops, Henry Gates’ myopia notwithstanding) was drunk and refused to comply with the officers’ demands for his identification.
A spokesperson says, “The officers contacted the homeowner, who was highly intoxicated. The officers explained the noise ordinance to the homeowner, who refused several requests to turn down the loud music. Rodriguez began to act disorderly and refused to identify himself to officers.”And so, while enjoying the baptism party for his two grandsons in his own backyard, Rodriguez was arrested for public intoxication.
The best thing anyone can say about this absurd incident is that no one died, especially the mother’s unborn child who may be one of the first fetus’ to feel the sensation of 50,000 volts in the womb. That the fine men and women charged with tasing pregnant women during backyard baptism parties thought it best to use force is but one issue. But the question lingers whether, had the officers not been armed with tasers, would they have just beaten Rodriquez and the pregnant mother senseless with clubs?
The confluence of tasers and police authority seems to be a constant source of stories for me. I’m sick of these stories. The solution isn’t to stop reading or writing about them, but to continue to do whatever is possible to make others aware of the dangers inherent in putting tasers in the hands of police officers, and putting police officers on a pedestal. I can think of no other “tool” in the hands of police that has given rise to such flagrant abuse and misuse.
I might quip, “when in doubt, tase,” but there was no doubt here at all. The worst that could be said of Rodriguez, assuming the cops are accurate and the family is lying through its teeth, is that he wasn’t sufficiently deferential and didn’t pull out his ID fast enough. In his own backyard. We can’t have that in America.
Or maybe the cops just don’t like Latinos, even if that includes pregnant mothers of two boys who were just baptized.
H/T Karl Mansoor
They All Rolled Over
I’m generally disinclined to criticize the plaintiff’s class action bar, despite the fact that it ordinarily produces monumental fees for itself and little material value for its purported class. I recognize that it’s important to mount a class against large corporations to stop bad actors from small but pervasive wrongs, and this is the only way to do it. I know all this.
But the Ford Rollover class action was an outrage. From WSJ Law Blog :
The AP has a story out Monday taking a sort of retrospective snapshot on the Ford Explorer rollover class-action litigation. As part of a settlement reached last year, the nearly 1 million class members covered by the lawsuit each received the opportunity to claim a coupon worth either $300 or $500 toward the purchase of a new Ford vehicle. As of June 2009, according to the piece, only 75 people had used the coupons, at a cost to Ford of $37,500. The plaintiffs’ lawyers, meanwhile, took home $25 million in fees and expenses.
That this case settled for coupons for the class members is absurd. That the judge approved this settlement is ridiculous. That the attorneys for the class were paid $25 million is the stuff of tort reform.
Class actions are very expensive to litigate. It’s understandable why the legal fees appear grossly disproportionate to the payouts to individual class members. After all, that’s the reason why class actions are necessary in the first place, that the individual loss may be small or trivial, but added together can amount to a very substantial amount of money of a very real harm done the class.
But this settlement, coupons for the class and a huge check for the lawyers, was a sellout. That these lawyers agreed to, and that this judge, approved this settlement feeds everyone’s worst nightmare about lawyers, and the plaintiff’s bar in particular, and rightfully so.
The lawyers blame the coupon settlement on the economy and Ford’s prospects for bankruptcy. That’s nonsense. They weren’t worried about the economy when they went to cash their legal fee check. If someone can offer a legitimate justification for this settlement, I would appreciate it. But I doubt anyone can do so.
These are the sorts of issues that people have in the back of their mind when they retain me. As a lawyer, I won’t be responsible for conduct such as this. Like others, I too am outraged.
Last year, Sacramento County Superior Court Judge David De Alba authorized the settlement of a class action that lawyers argued could be worth as much as $500 million to people who owned Ford Explorers during the 1990s. As part of the settlement, Ford customers could receive a $500 discount coupon toward the purchase of a new SUV or a $300 coupon to buy another Ford vehicle.Does it come as a shock that owners of a vehicle that has an unfortunate tendency to rollover are unlikely to want another one? This wasn’t compensation for past wrongs, but fundamental malpractice and outrageous greed. These lawyers sold out their clients, the class. This judge can’t possibly be that blind to not realize that approving a $25 million fee when the class received nothing of value was wrong.
Class actions are very expensive to litigate. It’s understandable why the legal fees appear grossly disproportionate to the payouts to individual class members. After all, that’s the reason why class actions are necessary in the first place, that the individual loss may be small or trivial, but added together can amount to a very substantial amount of money of a very real harm done the class.
But this settlement, coupons for the class and a huge check for the lawyers, was a sellout. That these lawyers agreed to, and that this judge, approved this settlement feeds everyone’s worst nightmare about lawyers, and the plaintiff’s bar in particular, and rightfully so.
The lawyers blame the coupon settlement on the economy and Ford’s prospects for bankruptcy. That’s nonsense. They weren’t worried about the economy when they went to cash their legal fee check. If someone can offer a legitimate justification for this settlement, I would appreciate it. But I doubt anyone can do so.
These are the sorts of issues that people have in the back of their mind when they retain me. As a lawyer, I won’t be responsible for conduct such as this. Like others, I too am outraged.
New Meaning For Badgelickers
Joel Rosenberg is fond of calling people who place blind faith in police badgelickers. Not that he’s got anything against police, per se, but that he’s not inclined toward blind faith in anyone. So badgelicker came immediately to mind when I read Turley’s post about a disgusting clash between a couple of Wisconsin National Guardsmen and a pair of cops.
The guardsmen, both of whom have served two tours of duty in Iraq, were in the Dells for weekend training and were stopped by police officers Wayne W. Thomas and Collin H. Jacobson early the morning of June 1 and accused of having urinated in public, according to a lawsuit filed Monday in U.S. District Court in Madison.Is this supposed to be a man thing? A “guys with guns” thing? A Wisconsin thing? My problem is not limited to what sort of psychological deficiency causes two men, police officers, to even consider telling others to do such a thing. My problem is that two National Guardsmen, both of whom have served two tours of duty in Iraq, would even consider, no less perform, such an act. To avoid a citation? Not even to avoid a damn good beating is this normal conduct.
The officers pointed out a wet spot in an alley that they thought was urine, the lawsuit states, but the guardsmen, Sgt. Anthony R. Anderson, of West Bend, and Specialist Robert C. Schiman, of Kaukauna, denied having relieved themselves in the alley.
In order to prove that it was not their urine and avoid a citation, Thomas and Jacobson made Anderson and Schiman lick the ground and scrape mud up with their hands and lick it, according to the lawsuit.
Schiman also was made to eat a plant that was drenched in the liquid, the lawsuit states.
It’s not clear what pathology this reveals, what deep-seated psychological need was left unfulfilled or overfilled, but I fear that this facially gross story reveals some deeply troubled issues that are normally hidden from polite company. This is not the sort of thing that happens amongst people of even moderately normal mental health. It is not so much a story about police abuse, but a story about sick men, all of whom bear arms to some greater or lesser extent, and are charged with the protection of American society. Is this a reflection of some psychological impairment that pervades those who make the choice to serve as society’s protectors?
What would possibly drive two police officers to want to direct two national guardsmen to do such a thing? And worse yet, what would drive two national guardsmen to do it? There is something very wrong here. Very wrong indeed.
Popular Mechanics, A Handbook For Judges
When I was a kid, Popular Mechanics was a really cool magazine. It had cars that could be driven into the water like a boat, and wild one-person helicopters and jetpacks that we would all be using one day to get around. It was the stuff that dreams were made of, at least for 12 year olds. I haven’t read it in a long, long time. In fact, I haven’t even seen one around. My metrosexual dentist prefers Architectural Digest.
But after reading Radley Balko’s post about Popular Mechanics and its story on the flaws of forensic science, I’m think that it might be time for the state to buy a bunch of copies and leave them lying around the judges’ lounge.
A while back, I wrote a piece for the now defunct Judicial Reports about how the thousands of videos of police doing the dirty makes it impossible for judges to honestly default to the assumption of police credibility and integrity. My position was that it was no longer possible to close one’s eyes to the fact that some cops lie and harm people, and do so without what others might see as a comprehensible reason. It just happens.
Nothing changed. Judges are either too busy or too disinterested to spend their time watching Youtube to learn what the rest of us have come to realize by being bombarded day to day with the proof that our fears of the past are indeed valid. We may be firmly convinced, but we’re not the decisionmakers. The decisionmakers haven’t budged. A few, perhaps, but not enough to make a dent.
The same is true with advances in science, They are still in love with science, viewed as perfect evidence in contrast with the garbage of testimony that we’re all forced to endure. Their job is so much easier when scientific proof, something upon which they can rely without any nagging doubt in their back of their mind, is presented. They lose no sleep when some tech takes the stand and speaks the results of their test.
Of course, judges are the last people one would want to decide the validity of scientific testing. They know zip about it to begin with, and haven’t kept pace with new data and faults that appear in the literature. Of course, one might remind them that at one point in time, bleeding with leeches was considered the height of medical knowledge. Things change. Except in the courtroom. Debunked science will continue to be embraced with love and appreciation long after researchers have determined that it’s just another round of leeches.
Judges are the human version of lemmings, following each other blindly under the guise of precedent. Not until some rebel judge challenges the orthodoxy will another even consider the question of whether a test, once deemed reliable, might be full of crap. It’s not that each judge doesn’t have the capacity to be the rebel, though most lack the desire. It’s that they can never go wrong (legally) by falling back on that which has already been decided. What was once good science remains good science, so long as no judge has broken ranks.
Publishing this article in Popular Mechanics seems like an important step in breaking away from the mindset that if some scientist once said that this is good evidence, it’s now irrefutable in perpetuity. You can bet money they won’t be reading the scholarly journals to find out that fingerprinting isn’t perfect, but it’s just possible that they will read Popular Mechanics. After, it’s got pictures.
Now if we could just get Playboy to cover the subject. They only read it for the article, you know.
But after reading Radley Balko’s post about Popular Mechanics and its story on the flaws of forensic science, I’m think that it might be time for the state to buy a bunch of copies and leave them lying around the judges’ lounge.
The article includes a skeptical look at four common forensic specialties, including fingerprint analysis, ballistic evidence, trace evidence, and biological evidence, and explains how none are as certain as they’re often portrayed in the courtroom.Lawyers are not required to know squat about science to pass the bar. For some bizarre reason, judges, upon their elevation to the bench and donning of the robe, are of the belief that they’ve suddenly become scientific savants (as well as funny, which is another issue). As the gatekeepers of evidence, they ought to be. But, of course, they’re not.
A while back, I wrote a piece for the now defunct Judicial Reports about how the thousands of videos of police doing the dirty makes it impossible for judges to honestly default to the assumption of police credibility and integrity. My position was that it was no longer possible to close one’s eyes to the fact that some cops lie and harm people, and do so without what others might see as a comprehensible reason. It just happens.
Nothing changed. Judges are either too busy or too disinterested to spend their time watching Youtube to learn what the rest of us have come to realize by being bombarded day to day with the proof that our fears of the past are indeed valid. We may be firmly convinced, but we’re not the decisionmakers. The decisionmakers haven’t budged. A few, perhaps, but not enough to make a dent.
The same is true with advances in science, They are still in love with science, viewed as perfect evidence in contrast with the garbage of testimony that we’re all forced to endure. Their job is so much easier when scientific proof, something upon which they can rely without any nagging doubt in their back of their mind, is presented. They lose no sleep when some tech takes the stand and speaks the results of their test.
Of course, judges are the last people one would want to decide the validity of scientific testing. They know zip about it to begin with, and haven’t kept pace with new data and faults that appear in the literature. Of course, one might remind them that at one point in time, bleeding with leeches was considered the height of medical knowledge. Things change. Except in the courtroom. Debunked science will continue to be embraced with love and appreciation long after researchers have determined that it’s just another round of leeches.
Judges are the human version of lemmings, following each other blindly under the guise of precedent. Not until some rebel judge challenges the orthodoxy will another even consider the question of whether a test, once deemed reliable, might be full of crap. It’s not that each judge doesn’t have the capacity to be the rebel, though most lack the desire. It’s that they can never go wrong (legally) by falling back on that which has already been decided. What was once good science remains good science, so long as no judge has broken ranks.
Publishing this article in Popular Mechanics seems like an important step in breaking away from the mindset that if some scientist once said that this is good evidence, it’s now irrefutable in perpetuity. You can bet money they won’t be reading the scholarly journals to find out that fingerprinting isn’t perfect, but it’s just possible that they will read Popular Mechanics. After, it’s got pictures.
Now if we could just get Playboy to cover the subject. They only read it for the article, you know.
The process of turning the ship of justice around is brutally long and difficult. Anyone reading this post is likely to keep abreast of new developments, whether in the law, science or otherwise. While I know of some judges who do so, I similarly know that they aren’t inclined to reveal to their brethren that they actually know how to use a computer, or that they’ve come to realize that the easiest path is no longer the presumptively correct one. If they disclosed their geekishness, or that they possess intellectual curiosity and a desire not to follow bad scientific evidence, the other judges would make fun of them and they would never advance in the judicial hierarchy. Since these enlightened judges are all still in their teen years, they couldn’t possible take that risk.
Eventually, the time will come when judges realize that their love of scientific proof of dubious merit is unrequited, and that so many men and women spent lives in prison based on a scientific fraud. Unfortunately, the lag between scientific recognition of its own failings and judicial acceptance of another silver bullet hitting the wrong target will be long indeed. And even if they read the current issue of Popular Mechanics, they will be far more interested in the story about personal jetpacks than this one.
Blawg Review #223, Sphincter Rules
Today was not my day to do Blawg Review. Some marketing guru-type signed up for the job, and then disappeared. What a shock. So the anonymous Ed, being the happy guy he is, decided to stick it to me publicly, knowing how much I hate doing Blawg Review. Nice guy.
But then, it’s raining outside, my father-in-law stopped by unannounced for a visit, so doing a quick Blawg Review suddenly didn’t seem nearly as unpalatable as it normally would. After a firm discussion with myself, considering what would Geeklawyer do if Ed did this to him, I realized: Sphincter Rules. Wrapping my arms around a bottle of rioja, the only Atkins-friendly wine I know, I set to work.
Walter Olson at Overlawyered posts that school boys in Britain must now wear clip-on ties to avoid a potential choking hazard. It’s not that he wants boys to choke, but that he gave Ted Frank a clip on for his birthday and now fears that Ted will take it the wrong way. On a more frivolous note, Walter shows his softer side with a little poetry.
I think that I shall always rue
The day a tree got rights to sue.
A tree whose hungry lawyer’s plea
Is filed on a contingency…
Ridiculous. No lawyer would take a case for a tree on contingecy. Sphincter Rules.
In contrast, we have the kiss thrown by Adrian Dayton to our own Ed, thanking him for the opportunity to do Blawg Review (as if Ed wouldn’t have paid him if he held out), which follows his 10 Things Every CEO and Managing Partners Should Know About Social Media. Just tell me one thing, kid. Have you ever met a CEO or Managing Partner? And you, Mr. Twitter-Maven, are going to tell them what they should know? Maybe I should cut the kid a break, but I’m not as nice to the Slackoisie as the Texas Tornado, Mark Bennett, who has done a far kinder job of explaining work/life balance than I would. I prefer the Cher method from Moonstruck.
And if the young’ns don’t like it, they are always free to leave, unlike the prisoner who ended up getting screwed when the lawprof assigned to handle his appeal handed it off to a student to play lawyer for a day, per Mike at Crime & Federalism, only to find that the inchoate lawyer, as Judge Alex Kozinski held, “waived waiver” and blew the whole gig. Would Judge Norm Pattis have done that? We’ll never know, now will we.
Dave Hoffman at Concurring Opinions writes about how Beatty Chadwick, the lawyer who sat in jail since 1995 rather than comply with the court’s order in his divorce, was finally released. His strategy was finally vindicated, and it only took 14 years of his life. Great deal, though for only a few extra years, he could have comitted murder. But at least Chadwick got his name in the paper, which is more than can be said for Brian Tannebaum, who starts by asking why journalists love prosecutors, and then has to explain why his own name was left out of a big story when the writer was a personal friend. Maybe he should take kiss throwing lessons from Adrian?
Eric Turkewitz at New York Personal Injury Law Blog figures out that you can pretty much get any personal information you want about a person by just going through the court record. And that goes for lawyers’ social security numbers too. Lest this upset you. Marc Randazza at the Legal Satyricon has some good news about porn law, that DOJ has agreed that it’s wrong to prosecute a New Jersey pornographer in Montana just because the latter smells better and no one at DOJ has an appropriate wardrobe of doubleknit suits. You can get a lot of personal information by watching porn as well, by the way, though Randazza doesn’t seem nearly as concerned about it as Turk does. Sphincter Really Rules. Scratch that image.
Seth at Quizlaw posts about the drunk kid who was told by a Milwaukee cop that he couldn’t just sleep it off in his car, forcing the kid to move along. Of course, the kid was then immediately busted for drunk driving. The Wisconsin Court of Appeals decided that this time, the Sphincter didn’t rule in the end. But as Patrick at Popehat posts, the same couldn’t be said for Antonio Love, deaf and mentally disabled, who was tased and pepper-sprayed for not responding when a cop knocked on the bathroom door. Rule of Life: Whenever the word Taser appears in a story, you can rest assured that the Sphincter Rules.
At Above The Law, where Elie Mystal recently showed why he’s writing for a blawg rather than practicing law, they’re hard at work coming up with alternative career paths for their now-unemployed Biglaw associate readers (to be distinguished from their readers under the age of 12), all of whom are named “anonymous”. The latest idea is New England Innkeeper, for which they have slightly less chance of success than solo practice, but at least equal likelihood of competence. Of course, their chances are better than Brandon Pereira, a passenger in the negligent car suing the innocent car because, as his lawyer Roland Hughes explains, “I’m trying to get compensation for my client anywhere I can.” Hughes is rumored to have Elie’s roommate in law school.
Over at Prawfsblawg, David Fagundes wants to know whether other lawprofs think it’s worth his while to keep his law license active, even though he’s now a scholar and he would have to pay the freight out of pocket. After all, it’s not like a lawprof should have anything to do with the law, right. It’s yucky, and could get an academic’s hands all dirty. Like those of public defender Skelly, at Arbitrary& Capricious, who’s grown weary of his blawging after five years, and has decided to take a breather, if not a powder. I bet he wishes he had the chance to ponder whether he could give up the practice of law for the good life of the Academy, if only all those nasty indigent criminal defendants would stop demanding that he save their lives. But nothing there to concern you, David. You’re a scholar. No need for you to, maybe, actually help someone with that brilliance of yours.
In a post ironically appropriate to both Fagundes and Skelly, Charon QC notes that The Law Society has launched a campaign to warn students to “think twice about embarking on a career in law,” which suits Charon just fine given his belief that those who can’t cut it should, perhaps, consider an alternative career path. (No, Geeklawyer, this was not about you.) Maybe Innkeeper? What, you thought I was going to say blawger for Above the Law? But hey, any profession beats the crap out of Congressman, the abuse of whom, per Reynolds, is the “the highest of for patriotism.” I don’t know what that means either, but then I’m not a scholar, right David? Of course, Sphincter Rules. Even Especially in the marble hallways of the Academy.
Which brings me to the Sphincter Rules Story of the Week, with Henry Gates playing Ward Cleaver, Cambridge Police Sergeant James Crowley playing Eddie Haskell, Barack Obama as June Cleaver, Joe Biden as Wally Cleaver and Lucia Whelan as T
he Beav. Wendy Murphy does a cameo as Lumpy Rutherford.
But Ed told me to lay off the whole GatesGate and Beer Summit posts, which of course are the really good stuff across the blawgosphere (and just about everywhere else) this week, as he was going to keep those for himself in order to make the point that there’s nothing involved in centuries of racial prejudice and discord that a few beers can’t solve. I’m not even allowed to touch Rick Horowitz’s subtle hand pointing out that if Whelan is the darling of America (which she is, I might add), how do we explain Crowley’s police report laying the nasty racist stuff off on her? Nope, I can’t touch it, not even to point out that how few have noticed that his official police report is the product of Sphincter Rules.
That out of the way, I close with one final thought. I didn’t want to do this Blawg Review. I never wanted to do another Blawg Review again. And yet I did. Sphincter Rules. And not a single mention of What About Clients?, since nothing Dan Hull has ever done falls under the rubric, Sphincter Rules. Over to you, Ed.
Next week’s Blawg Review is to be hosted by BabyBarista (or who I prefer to call the prick blawger who didn’t send me a free copy of his book BabyBarista and the Art of War). You can get instructions from Blawg Review how to get your blawg reviewed for an upcoming Blawg Review, just like I would have reviewed BabyBarista’s book if Tim Kevan sent me a free friggin copy (but he didn’t, that loser).
Need Options In A Troubled Economy?
While the recession may be receding, provided your a Wall Street Bonus Baby, many criminal defense lawyers continue to find it difficult to make a go of it, unable to find defendants capable or willing to shell over their few remaining dollars to give them a fighting chance. Does it feel like a lost cause? Then consider the options.
From Grey Tesh, President of the Palm Beach Association of Criminal Defense Lawyers and eyeglass model:
There’s plenty of work out there. If you are a hustler, you’ll do fine. I try and stay away from the naysayers. You know. The people that say “Business sucks. Nobody has any money…I’ve never seen it this bad in my 22 years of practice.” Stop complaining, get off your ass and hustle. Do something. Build a better website, take civil lawyers to lunch, volunteer in something you believe in – anything. Take your tale of woe elsewhere.
If people are not hiring you, it may not just be that they “have no money.” Many times it is a lack of trust. Concentrate on what they want and need, care about them and the trust will come.
Or maybe you just have ugly eyeglasses, you negative nellies. Think contacts.
Perhaps you’ve grown tired of the law, the grind, the head-banging. Maybe you really don’t want to put the effort into hustling your way to vast wealth, Palm Beach style. If so, there’s always the path of Casey Berman, Hastings Law Grad and card-carrying member of the Slackoisie.
Perhaps you’ve grown tired of the law, the grind, the head-banging. Maybe you really don’t want to put the effort into hustling your way to vast wealth, Palm Beach style. If so, there’s always the path of Casey Berman, Hastings Law Grad and card-carrying member of the Slackoisie.
Long before the recession killed the job market, Casey Berman realized the law wasn’t for him.It seems Casey’s an old pro at creating businesses, though it hasn’t done him a lot of good, considering that while pushing his new consultancy start-up, he’s “working full time at Berman Capital, his father’s investment banking firm in North Beach.” Remember, it’s always best when “leaving law behind” to have a daddy with an investment banking firm. Just to speak to you father. He’ll be happy to do it for you.
Having launched a number of companies already — and sold one — now he’s launching another: a consultancy called Leave Law Behind through which he’ll hold the hands of disillusioned lawyers who want to start their own businesses.
Or, as I found out in the mail yesterday, one can approach new options from the other side. I received a letter from the very prestigious Cambridge Who’s Who. Note that it is not to be confused with Fat Tony’s Who’s Who, which is not nearly as prestigious. Only Who’s Who with Anglo sounding names are prestigious.
Having regularly received these Who’s Who letters over the years, ranging from Who’s Who on my Street to Who’s Who in the World (because Nelson Mandella and I have so very much in common), I was about to toss it when my kid, who rarely receives mail, asked if he could open it. I gave it to him, and watched as his eyes exploded. He informed with newfound respect that I was now going to be in Who’s Who in Medicine. Woo hoo!
Please understand that I’m constrained to suffer the disdain of my darling wife, Dr. SJ, who enjoys immensely reminding me of my deficient education and that lawyers’ degrees only say the word “doctor” for government pay grade purposes. This letter changed everything.
Obviously, I am now a powerful force in medicine. I know this because Cambridge Who’s Who said so. They would never lie. Whereas yesterday my career options were limited, either to learn how to do the hustle (something I failed to accomplish in the 1970s) or to beg my father to end his retirement to found a wonderfully successful investment banking firm, I can now begin my career in medicine from the very top of the profession. And I don’t even have my own pair of latex gloves! What a great country!
As for me, I’ve already got as much business as I can handle and would hate to leave my clients in the lurch while engaging in much needed proctology examinations (bare-handed), so I’m just going to keep doing what I’ve always done. But at least I can tell Dr. SJ that she’s got nothing on me anymore.
But For Video, Volume 43 (Update)
There is probably no “tool” that has done more for injecting a wee bit of honesty into busts than the dash cam, which is why you won’t find one on any police car in New York City. But you will in Cookeville, Tennessee.
If Carlos Ferrell had been arrested in the Bronx, there would no chance, absolute zero, that anyone would have believed him when he said that the cops who arrested him, after having a police dog dine on his leg for a tasty delight, planted pot on him. Not that it hasn’t been claimed before, along with the other claims of planted throw-away weapons and the tuning up given a recalcitrant perp.
Fortunately for Ferrell, his arrest was caught on a dash cam, showing not only the needless dog attack after he submitted to authority, but the hand signal and then the goofy pronouncement of Police Officer Chris Melton that he found marijuana, “Whoa, Carlos…”
Cops Plant Drugs On Suspect – Watch more Funny Videos
As Ferrell’s attorney, Blair Durham notes, when the cops have the hand signals already worked out, it suggests that this isn’t exactly the first time they’ve planted pot on a perp. Indeed, having a bag of weed in his right breast pocket suggests that Melton was a believing in the boy scout creed, to be prepared. Or maybe the Nike creed, just do it.
It seems somewhat obvious that cops with dash cams would behave themselves just a bit better than would otherwise be the case, given that they may well find their behavior on the internet. No matter how many police chiefs respond to embarrassing videos with the hackneyed “consistent with police policy,” the fact remains that videos have proven remarkably effective in disclosing police misconduct and abuse, and cutting short a fine career in law enforcement. Or at least forcing the offending officer to lose three days pay while on suspension.
A well-intended person might believe that videos would be embraced by cops nationwide. After all, they would provide evidence of crimes and serve to corroborate police testimony in court, where (in the minds of our well-intended citizenry) activist judges give criminals a free ride with laws that favor the wrong-doers at the expense of the law-abiding. But no, the police despise the idea of dash cams. Hate it. How could that be, you wonder?
In the absence of video, we’re left with only the cops word on what happened. Typical testimony is that an officer from the 34 Precinct stopped a car because the driver changed lanes without signaling. Sure, it’s uptown, where nobody has ever signaled to change lanes in the history of man, but it’s still a traffic infraction and the cops said he saw it. That’s it. End of story. Nothing more needed, and nothing to do to counter it. There’s no evidence to support it, and the worst one can do is put a defendant on the stand to deny it. You will never find an independent witness who happened to be watching the car at that moment and can testify that it either didn’t change lanes or did signal.
Without a dash cam, it is impossible to contradict an officer’s relatively innocuous allegation. Of course, it becomes critical when he finds the 27 kilos of marijuana in the trunk of the car, which he smelled with his hypersensitive nose. But that’s a story for another day.
There’s no upside to cops in having a dash cam. But as Chris Melton found out, it can have a definite downside. And without the video, no judge would ever believe that stuff like this happens. Unfortunately, even with this video, they still don’t believe it happens in Manhattan. After all, it’s just an isolated incident.
Update: Thanks to Karl Mansoor, we have an answer to the burning question of what became of P.O. Melton.
Whoa, Carlos, weed? Now you got you another freaking charge, how about that?” Melton told Ferrell in the video.Ferrell’s lawyers state that it was a total plant and they are pressing forward with the case. Melton appears likely to have a commendation in his very bright law enforcement future. Justice is served. Eat it while it’s hot.
But a Tennessee Bureau of Investigation concluded that Melton was reaching into his pocket to hit a button to make sure the camera in his car was recording the arrest.
Acting District Attorney Tony Craighead also pointed out some audio later in the tape where Ferrell can be heard saying to the arresting officers, “Yeah, you found the weed in my pocket.”
“The TBI’s finding is there is no wrongdoing by Officer Melton. The DA’s office is not picking sides here,” Craighead said.